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292708 



ILLINOIS STATE UNIVERSITY 




3 0711 99892 0308 



REPORTS 



OF 



CASES AT LAW AND IN CHANCERY 



ARGUED AND DETERMINED IK THE 



SUPREME COURT OF ILLINOIS. 



By NORMAN L. FREEMAN, 

REPORTER. 



VOLUME LXV. 



CONTAXNTNa ADDITIONAL CaSES SUBMITTED AT THB 

September Term, 1872. 



PRINTED FOR THE REPORTER. 



SPRINGFIELD: 
1875. 




Entered according to Act of Congress, in the year 1875, by 

xor:\ian l. freeman, 

In the office of the Librarian of Congress at Washington. 



JUSTICES OF THE SUPREME COUET 



DURING THE TIME OF THESE REPORTS. 



CHAELES B. LAWRENCE, Chief Justice. 
PIKKIsTET H. WALKEE, SIDNEY BEEESE, 
JOHN M. SCOTT, WILLIAM K. McALLISTEE, 

ANTHONY THOENTON, BENJAMIN E. SHELDON, 

Justices. 



ATTORNEY GENERAL, 

WASHINGTON BUSHNELL, Esq. 



REPORTER, 

NOEMAN L. FEEEMAN. 



CLERK IN THE SOUTHERN GRAND DIVISION, 

E. A. D. WILBANKS, Mt. Vernon. 

CLERK IN THE CENTRAL GRAND DIVISION, 

WILLIAM A. TUENEY, Springfield. 

CLERK IN THE NORTHERN GRAND DIVISION, 

WOODBUEY M. TAYLOE, Ottawa. 



292708 



T^BLE OF C^SES 



BEPOBTKD EN THIS VOLUME. 



Adlard u. Adlard 212 

Allport ads. Inman et al 540 

Armour v. Eiclielberger 355 

Ayers ads. Case 142 

Aylesworth v. The People of the 
State of Illinois 301 



Baker ads. The City of Dixon. . 518 
Baldwin et al. ads. Hodgson et al. 532 

Barbour ads. Bradley 431 

Barnes et al. ads. Manufacturers' 

National Bank 69 

Bartholomew, The People ex rel. 

ads. Smith 375 

Bauer u. Gottmanhausen 499 

Beygeh v. Chicago, City of. 189 

Big Grove, Town of, v. Wells. . 263 

Blackmore et al. ads. Price 386 

Board of Trade of the City of 

Chicago V. Buckingham et al. 72 
Board of Trustees v. David- 
son et al 124 

Bradley v. Barbour 431 

Brewer et al. ads. Shepard. 383 

Brosseau et al. ads. Comstock. . 39 
Brown et al. ads. Haskell 29 



PAGE. 

Buckingham et al. ads. The 
Board of Trade of the City of 

Chicago 72 

Burr et al. v. Mueller et al 258 

Burson v. Dow and Fowler. . . . 146 
Butts ads. Grimes 347 



Carpenter, for use, etc., ads. 
Larned 543 

ads. Wells 447 

V. Wells 451 

Case V. Ayers 142 

Canisius et al. v. Merrill et al.... 67 
Chicago Building Society v. 
Crowell 453 

City of, ads. Beygeh 189 

ads. Ward 189 

ads. Sanger et al 506 

V. O'Brennan 160 

Chicago and Northwestern Kail- 
way Co. v. Ingersoll et al 399 

City National Bank of Ottawa 

et al. V. Dudgeon et al 11 

Clayes v. White 357 

Collins et al. v. Crotty 545 

Comstock V. Brosseau et al 39 

Cone V. Woodward 477 

Conyne ads. Fitch 83 

Crandall ads. Warner et al 195 

Crawford et al. ads. Munson.. . . 185 



VI 



TABLE OF CASES REPORTED. 



PAGE. 

Grotty ads. Collins et al 545 

Crowell ads. The Chicago Build- 
ing Society 453 

Curtenius ads. The Toledo, Peo- 
ria and Warsaw Railway Co. 120 

D 

Danforth et al. ads. Spangler.. . 152 

Daniel et al. ads. Tyler et al.. .. 316 
Daniels v. The Fifth National 

Bank of Chicago 409 

Davidson et al. ads. The Board 

of Trustees 124 

Davis ads. Merricks 319 

et al. V. Wilson 525 

Deenis v. Deenis 167 

Delius et al. ads. Jassoy et al.. . 469 

Dixon, City of, v. Baker 518 

Doane et al. v. Dunham 512 

Dobbins v. Duquid et al 464 

Dow & Fowler ads. Bursou 146 

Dudgeon et al. ads. The City 

National Bank of Ottawa e^ aZ. 11 

Dunham ads. Doane et al 512 

Dunne ads. Steele 298 

Du Page County, Board of Su- 
pervisors, V. Jenks et al 275 

et al. V. The People, etc., 

ex rel. Scott et al 360 

Duquid et al. ads. Dobbins 464 



Echternach ads. Wood et al 149 

Egan ads. Keightlinger 235 

Eichelberger ods. Armour 355 

Ellenbcrg ads. Hurlbert 398 

Ely V. Hanford 267 

Escherick v. Traver 379 



Fifth National Bank of Chicago 
ads. Daniels 409 



PAGE. 

First National Bank of Men- 

dota V. Smith 44 

Fisher v. Sievres 99 

Fish V. Stubbings 492 

Fitch V. Conyue 83 

Flynn v. Hathaway 462 

Force ads. Thompson 370 

Freeman et al, Admrs., etc., v. 

Freeman • 106 

Fortier et al. ads. Hitchcock.. . . 239 
Fox et al. ads. Rawson 200 



Gary ads. Herrick 101 

Goodwin v. Goodwin 497 

Gottmanhausen ads. Bauer 499 

Gramer v. Joder 314 

Granger ads. Tiernan et al 351 

Gregg ads. Wormley 251 

Grimes v. Butts 347 

Groch et al. v. Stenger 481 

Gunderson v. Peterson 193 



H 

Hale et al. ads. Warner 395 

Hall V. Jarvis et al 302 

Hanford ads. Ely 267 

Harding ads. Lickman 505 

V. The Rockford, Rock 

Island and St. Louis Railroad 

Company et al 90 

Haskell v. Brown et al 29 

Hathaway nds. Flynn 462 

Hayes nds. Jacobs 87 

Hay ward tids. Templeton 178 

Heck (ids. The Home Insurance 

Company of New York Ill 

Hoflin ads. The Rockford, Rock 
Island and St. Louis Railroad 

Company 366 

Herrick c. Gary 101 

Hibbard v. Thrasher 47& 



TABLE OF CASES REPORTED. 



PAGE. 

Hiuer v. Jeanpert et al 428 

Hitchcock V. Fortier et al 239 

Hoagland et al. ads. Thompson. 310 
Hodgson et al. v. Baldwin et al. 533 
Home Insurance Company of 

New York v. Heck Ill 

Hughes et al. v. Washington 

et al 245 

Hulett ads. Smith et al 495 

Hurlbert v. Ellenberg 398 



Ingersoll et al. ads. The Chicago 
and Northwestern Railway- 
Company 399 

Ingraham v. Luther 446 

Inman et al. v. Allport 540 

J 

Jacobs V. Hayes 87 

Jarvis et al. ads. Hall , 302 

Jassoy et al. v. Delius et al 469 

Jeanpert et al. ads. Hiner 428 

Jenks et al. ads. The Board 
of Supervisors of Du Page 

County 275 

Joder ads. Gramer 314 

Johnson, Admrs. v. Vaughn 425 

K 

Kaskaskia River Navigation 
Company, The People ex rel. 

e. Lippincott, Auditor 548 

Keightlinger v. Egan 235 

Kranert v. Simon et al 344 

L 

Larned v. Carpenter, for use, etc. 543 
Lawrence ads. Shackelton et al. 175 

Lee et al. ads. Swift et al 336 

Lickman, Executor, etc., v. 
Harding 505 



PAQB. 

Lippincott, Auditor, etc., ads. 
The People ex rel. The Kaskas- 
kia River Navigation Co 548 

Lubliner v. Yeomans 305 

Lussem ads. Mamer 484 

Luther ads. Ingraham 446 

M 

Magee v. Magee 255 

Mahoney et al. v. Mahoney 406 

Mamer v. Lussem 484 

Manufacturers' National Bank 

V. Barnes et al 69 

Martin et al. v. Robson 129 

ads. Twining 157 

Mathewson, Guardian, et al. ads. 

Spellman et al 306 

McClure v. Williams 390 

McCoy V. The People of the 

State of Illinois 439 

McDowell ads. WUson 522 

McWhorter et al. v. The People 

ex rel. The Chicago and Rock 

River Railroad Co 290 

Merricks v. Davis 319 

Merrill et al. ads. Canisius et al. 67 
Mueller et al. ads. Burr et al.. . 258 
Munson v. Crawford et al 185 

N 

Nelson ads. Rockford Insurance 
Co 415 

o 

O'Brennan ads. The City of Chi- 
cago 160 

Ottawa, City of, «. Sweelyei al.. 434 

P 

People ex rel. Bartholomew ads. 

Smith, County Judge 375 

The Chicago and Rock 

River Railroad Company ads. 

McWhorter et al 390 



TABLE OF CASES REPORTED. 



PAGE. 

People exrel. Scott et al. ads. The 
Board of Supervisors of 

DuPage County et al 360 

ads. Aylesworth 301 

ads. McCoy 439 

ads. Peri 17 

ads. Perteet. 230 

ad«. "Walsh 58 

ads. Yundt 372 

ex rel. The Kaslsaskia 

River Navigation Company 

V. Lippincott, Auditor 548 

Peoria County, Board of Super- 
visors •!;. Roche 77 

Peri V. The People of the State 

of Illinois 17 

Perteet «. The People of the 

State of Illinois 230 

Peterson ads. Gunderson 193 

Price V. Blackmore et al 386 



R 

Rawson v. Fox et al 200 

Richerson et al. v. Sternhurg. . 272 

Robson ads. Martin et al 129 

Robinson ads. Whitaker 411 

Roche ads. The Board of Super- 

visors of Peoria County 77 

Rockford Insurance Company 

B. Nelson 415 

Rockford, Rock Island and St. 
Louis Railroad Co. et al. ads. 

Harding 90 

V. Sage 328 

V. Heflin 366 

«. Shunick 223 

Russell «. Sycamore Marsh Har- 
vester Manufacturing Co 333 



Safety Deposit Life Insurance 
Company o. Smith 309 



PAGE. 

Sage ads. Rockford, Rock Island 

and St. Louis Railroad Co. . . 328 
Sanger et al. v. The City of Chi- 
cago 506 

Scott et al. The People ex rel. 
ads. The Board of Supervisors 

of DuPage County et al 360 

Scott V. Waller et al 181 

Scoville V. The Trustees of 

Schools 523 

Seaver v. Spink 441 

Shackelton et al. v. Lawrence. . 175 

Sheldon ads. Smith et al 219 

Shepard ■». Brewer et al 383 

Shumway et al. ads. Walsh 

et al 471 

Shunick ads. Rockford, Rock 
Island and St. Louis Railroad 

Co 223 

Sievres ads. Fisher 99 

Simon et al. ads. Kranert 344 

Smith ads. The First National 

Bank of Mendota 44 

'■ — County Judge, v. The Peo- 

pie ex rel. Bartholomew 375 

ads. The Safety Deposit 

Life Insurance Company 309 

et al. T. Sheldon 219 

V. Hulett 495 

Spellman et al. v. Mathewson, 

Guardian, et al 306 

Spink ads. Seaver 441 

Spangler v. Danforth et al 152 

Spurgin v. Traub etal 170 

Steele v. Dunne 298 

Steele et al, Guardians, etc., 

In re 323 

Stenger ads. Groch et al 481 

Steruburg ads. Richerson et al. 272 

Stubbings ads. Fish 492 

Sweely et al. ads. The City of 

Ottawa 434 

Swift et al. v. Lee etal 336 

Sycamore Marsh Harvester 
Manufacturing Co. ads. Rus- 
sell 833 



TABLE OF CASES REPORTED. 



PAGE. 

T 

Templeton v. Hay ward 178 

Thrasher ads. Hibbard 479 

Thompson ». Force 370 

V. Hoagland et al 310 

Tiernan et al. v. Granger 351 

Toledo, Peoria and Warsaw 
Railway Company v. Curte- 

nius 120 

Traub et al. ads. Spurgin 170 

Traver ads. Escherick 379 

Trustees of Schools ads. Sco- 

ville 523 

Twining v. Martin 157 

Tyler et al. v. Daniel et al 316 

V 

Vaughn ads. Johnson, Admrs. . 425 

w 

Wagner et al. ads. Western 
Union Railroad Company... 197 

Waller et al. ads. Scott 181 

Walsh V. The People of the State 
of Illinois 58 



PAGE. 

Walsh et al. v. Shumway et al.. 471 

Ward V. City of Chicago 189 

Warner et al. v. Crandall 195 

V. Hale et al 395 

Washington et al. ads. Hughes 

et al 245 

Wells V. Carpenter 447 

ads. 451 

ads. The Town of Big 

Grove 263 

Western Union Railroad Com- 
pany V. Wagner et al 197 

Whitaker v. Robinson 411 

White ads. Clayes 357 

Williams ads. McClure 390 

Wilson V. McDowell 522 

ads. Davis et al 525 

Woodward ads. Cone 477 

Wood et al. v. Echternach 149 

Wormley v. Gregg 251 

Y 

Yeomans ads. Lubliner 305 

Tundt'c. The People of the State 
of Illinois 373 



CASES 



SUPREME COURT OF ILLINOIS. 



NORTHERN GRAND DIVISION. 



SEPTEMBER TERM, 1872. 



The City National Bank of Ottawa et al. 

V. 

Samuel W. DuoaEOisr et al. 



1. Chancery — proof required. In chancery, before the complainant 
is entitled to relief, he must make out his case by a fair preponderance 
of testimony. When the testimony is conflicting, and leaves the matter 
in doubt, the complainant must fail. 

2. Stjbkogatioh — surety paying entitled to securities. Where a debtor 
had given his note to his creditor signed by another as surety, and had 
also secured the payment of the same by mortgage upon real estate of th& 



12 City Nat. Bank OF Ottawa v. Dudgeon. [Sept. T., 

Opinion of the Court. 

former, and the surety afterwards paid off the note : Held, that in equity 
the surety was entitled to be subrogated to the mortgage security held by 
the creditor. 

3. A suiety upon a note, which was also secured by mortgage upon 
land of the principal debtor, paid the same, and the creditor, with- 
out the assent of the surety, entered satisfaction of the mortgage, so as to 
leave the same subject to the lien of a judgment held by the creditor 
against the principal, and proceeded to levy upon the same land : Held, 
that as the mortgage was given for the benefit of the surety as well as for 
the creditor, the surety was entitled in equity to the benefit of the mort- 
gage security to the extent of his payment; and the land having been 
sold under a power in a prior mortgage, leaving a surplus, that the surety 
was entitled to receive such surplus to reimburse himself for what he had 
so paid. 

Appeal from the Circuit Court of LaSalle county; the 
Hon. Edwin S. Leland, Judge, presiding. 

Messrs. Eldridge & Lewis, for the appellants. 

Mr. J. B. Rice, for the appellees. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

Samuel W. Dudgeon and Bradford T. Mitchell, partners 
in trade in Ottawa, were indebted to Mead & Co., of New 
York, in the sum of $3500, and in other sums to other mer- 
cantile houses in that city. They were also indebted to the 
National City Bank of Ottawa on a note for $2000, and a 
note for $1000. William H. Dudgeon, a brother of Samuel, 
was security for them on the former note. On the latter 
there was no security. Besides this indebtedness, Samuel 
was also indebted to the bank on his private account in a 
note of $1000, secured by mortgage on a tract of land. This 
note was also signed by his brother William as surety. Wil- 
liam was also indebted to the bank in a note for $500 on hia 
own account. 



1872,] City Nat. Bank of Ottawa v. Dudgeon. 13 

Opinion of the Court. 

In December, 1866, the firm of Mitchell & Dudgeon made 
an assignment for the benefit of their creditors, and made the 
bank a preferred creditor. Soon after Mead & Co. levied an 
attachment on the goods, insisting that the assignment was 
illegal. An arrangement was then made by which Mitchell 
and Dudgeon confessed judgment on the debt due Mead & Co., 
and on each of the two bank notes, and executions were at 
once taken out and levied on the stock of goods belonging to 
the firm. The complainants below, appellees here, claim that 
one of the terms of this arrangement Mfas,that the bank would 
accept the proceeds of the sale in satisfaction of both the 
judgments in its favor. On the other hand, the bank insists 
that it agreed only that it would not proceed against William 
Dudgeon, but did not undertake to satisfy both judgments as 
against Mitchell and Dudgeon. The goods brought at the 
sheriff's sale only enough to satisfy the Mead judgment, and 
the larger judgment, within a few dollars, in favor of the 
bank. Nothing was applied on the smaller judgment. Soon 
after the sheriif 's sale, William Dudgeon, through his brother 
John, paid the $1000 note to the bank on which he was 
security for Mvib brother Samuel, and also paid his own note 
for $500, although the latter was not due for several months, 
and the interest had been deducted in advance. These notes 
having been paid, Samuel called on the bank for a release. 
It refused to release him from the unpaid judgment, but was 
willing to execute, and did execute, an agreement not to en- 
force the larger j udgment against William, on which, as already 
stated, there was a small balance due. Samuel, though dis- 
satisfied with this agreement, took it and preserved it. 

After all these transactions the bank levied an execution 
issued on its unpaid judgment upon the same tract of land on 
which it had held a mortgage to secure the note given by 
Samuel and William Dudgeon. After the payment of that 
note by William it had satisfied the mortgage of record. This 
bill was then filed by Samuel and William to prevent the sale 



14 City Nat. Bank of Ottawa v. Dudgeon. [Sept. T., 

Opinion of the Court. 

•of said premises, and to compel the bank to satisfy the unpaid 
judgment as to Samuel. The circuit court so decreed. 

The evidence in the case is very contradictory as to the pre- 
cise character of the agreement made by the bank. There is 
very positive testimony on behalf of the complainants that 
the bank agreed to accept its share of the proceeds of the 
goods in full satisfaction of all the judgments. On the other 
hand there is equally positive evidence on the part of the 
bank that the agreement was, simply, that William Dudgeon 
should no longer be held responsible. We are of opinion 
that the witnesses on both sides swear honestly, and that the 
opposition in their testimony is due to a difference of under- 
standing as to the extent of the agreement on the part of the 
bank. 

After a careful consideration of all the testimony we have 
reached the conclusion that the bank did not agree to release 
Samuel Dudgeon without full payment. He testifies himself 
that, at the time when the parties were making these ar- 
rangements, he considered himself hopelessly insolvent, and 
was only solicitous for his brother William, whose name was 
on his paper as a surety. The attorneys of Mead, m4io were 
in a position to know what arrangements were made, and whose 
position would not prejudice them as to either party, testify 
that they understood the bank only agreed not to further 
harass William Dudgeon. The attorney who acted for the 
Dudgeons, and drew the agreement finally executed by the 
bank officers, testifies that he understood Samuel Dudgeon, 
who was present, to assent to the agreement. The record is 
not clear as to how this agreement came into Samuel's pos- 
session, but it seems to have been there when he gave his 
testimony. The testimony of tiie bank officers is very posi- 
tive, but that we may consider balanced by the evidence of 
complainants, all of them testitying under a strong bias. 
Delano and Avery, it is true, concur with the complainants in 
their testimony, but on the otlier hand, Gray, who drew the 
deed of assignment and was attorney for the Dudgeons, agrees 



1872.] City Nat. Bank of Ottawa v. Dudgeon. 15 

Opiniou of the Court. 

with the attorneys of Mead and with the bank officers. Finally 
Mitchell himself concurs with them. Moreover, no sufficient 
reason is assigned why the bank should have released Samuel 
Dudgeon from a debt which he honestly owed, and which he 
had been so anxious to pay that he had given it preference in 
the assignment. "We must remember that before complain- 
ants can have the relief they seek, they must make out their 
case by a fair preponderance of testimony. This, in our 
opinion, they have not done. 

There is, however, a ground on which William Dudgeon, 
after amending the bill, will be entitled to relief so far as 
relates to the sale of the mortgaged premises. We have al- 
ready stated that the individual note of Samuel for $1000, 
secured by William and also by mortgage on a piece of land 
belonging to Samuel, was paid off by William soon after the 
judgments were confessed by the firm. The note was paid 
through the agency of John Dudgeon, with the expectation 
that he would take an assignment of the mortgage, which, 
however, he did not procure. But the money with which the 
payment was made belonged to William, to whom Samuel 
soon after conveyed the title. The land was subject to a prior 
mortgage for about $1800, and it appears by the testimony 
that it has been since sold by one Hereford under a power con- 
tained in said mortgage, and brought at the sale nearly $1000 
over the debt secured by said mortgage. This surplus is held 
by Hereford awaiting the decision of this suit. 

We have no doubt this controversy has grown out of the 
attempt of the bank to sell this land on its unsatisfied judg- 
ment against the firm of Mitchell and Dudgeon, and thereby 
take from William Dudgeon his only hope of reimbursing 
himself for the debt paid by him for Samuel to the bank. 
But for this we presume this litigation would not have arisen, 
as it is to be inferred from the testimony that Samuel Dud- 
geon is hopelessly insolvent, and has gone into bankruptcy. 
In this proceeding the bank was clearly in the wrong. It 
was violating the spirit of the agreement which it is admitted 



16 City Nat. Bank of Ottawa v. Dudgeon. [Sept. T., 
Opinion of the Court, 

to have made, and also disregarding the rights of William 
Dudgeon independently of the agreement. It is the right of 
a surety, when he pays the debt of his principal, to be sub- 
rogated to whatever securities the creditor may hold. This 
is a familiar principle in courts of equity, and has been recog- 
nized by this court. Phares v. Barbour, 49 111. 370; Billings 
V. Sprague, ib. 509. The bank, however, instead of trans- 
ferring the mortgage, satisfied it of record, thus letting in the 
lien of its own judgment, and then proceeded to levy. Al- 
though this was not a violation of the letter of its agreement 
with Samuel and William Dudgeon, it was of its spirit. By 
that agreement the bank was to look only to the goods of the 
firm so far as William Dudgeon was concerned. No special 
reference was had to the smaller judgment, to which William 
was not a party, but the evident spirit of the agreement was 
that he should be kept harmless from all these judgments 
after the goods were sold under execution. The bank has 
not directly levied upon his property. This it could not do 
as he was not a party. It has, however, by satisfying the 
mortgage, and then levying the execution on the mortgaged 
premises, levied on property which equitably belonged to 
William, to the extent of the mortgage, after the payment of 
the debt. The mortgage was a security not only for the 
benefit of the bank, but for his benefit, and was older than 
the judgment. Its cancellation was so palpably against the 
interest of William Dudgeon that we can not but believe, as 
testified by his brother John, that it was done against his 
wishes and instructions. 

In the view we have taken of this case, William Dudgeon 
is entitled to have the money awaiting the result of this suit 
in the hands of Hereford, paid to him so far as he paid the 
debt to the bank secured by Samuel's mortgage. Samuel 
Dudgeon, however, is entitled to no relief, and William can not 
receive it on the bill as it now stands. A supplemental and 
amended bill must be filed for the purpose of stating more 
specifically and correctly than in the original bill the facts in 



1872.] Peei v. The People. 17 

Syllabus. 

regard to the mortgage, and in order to set up the facts that 
have since occurred. Hereford will be a proper party to this 
bill. The original bill states that Samuel Dudgeon himself 
paid the debt to the bank with money borrowed from John, and 
gave John a mortgage to secure the money, and that he shortly 
after conveyed the premises to William in consideration that 
he had secured the payment of the mortgage to John, and 
the mortgage on which the premises were finally sold. The 
parties probably adopted these forms with the idea of making 
the lien more secure, but we have no doubt as the evidence 
now stands that the debt was really paid by William as surety, 
with money of his own or raised upon his credit. The bill 
was not sworn to by William, and it will promote justice 
to allow the bill to be amended for the purpose of placing 
his claim to relief on the only tenable ground. The decree 
must be reversed, and the cause remanded, with leave to file an 
amended and supplemental bill, the cost of all testimony here- 
tofore taken being taxable against complainants. 

Decree reversed. 



Gregori Peri 

V. 

The People of the State of Illinois. 

1. CRiMiNAii COURT OP CooK comsrTY — selection of grand and petit jurors. 
The laws relating to the Recorder's court of Chicago required that jurors 
for such court should be selected from the tax-payers of said city. The 
new constitution continued this court under the name of the Criminal 
Court of Cook county, and invested it with the same criminal jurisdiction 
as a circuit court in all cases arising in Cook county : Held, that the ef- 
fect of this constitutional provision was to repeal the mode of selecting 
jurors, and to require them to be selected from the body of the county, the 
same as in the circuit court. 

2— 65th III. 



J 8 Peri ^. The People. [Sept. T., 

Syllabus. 

2. Venire for jury — -presumption in fcmor of. On error in a criminal 
case, it was objected that the court below had no power to try the accused, 
because the record failed to show any order of the court directing the 
clerk to issue the venire for the jury of the term. The writ was under seal, 
and regular ©n its face, and no motion was made to quash it, or challenge 
made to the arraj', and the record showed that the jury who tried the ac- 
cused were elected and accepted by him as good and lawful men : Meld, 
from these facts, that it must be presumed that the writ was authorized by 
the order of the court, and properly issued, or that an exception would 
have been taken, and the facts upon which it was based preserved in the 
record. 

3. Criminal practice — in case of several convictions. When the peo- 
ple have obtained verdicts against an individual on several criminal char- 
ges, they may have judgment on each, or may abandon such as they choose, 
and have judgment on the others. 

4. So when a prisoner had been tried and a verdict found against 
him of murder, and fixing his punishment by imprisonment for life 
in the penitentiary, and he was again tried on another charge of murder, 
and found guilty, and the death penaltj^ awarded: Held, that the court 
had the power and right to render judgment and sentence in the last case, 
without judgment and execution in the first. 

5. Murder — malice — when implied. In the case of a homicide, in the 
absence of apparent well founded danger of great bodily harm, or such 
provocation as is calculated to excite irresistible passion, the law will im- 
ply malice. 

6. Same — time for deliberation not essential to malice. To constitute 
malice aforethought, it is not necessarj- that the party should brood over 
and meditate upon the performance of the act for a considerable space of 
time; but it is sufticient if it were deliberate and intentional without ap- 
parent well founded danger of great bodily harm, or where there is not 
such provocation as in law reduces the killing to manslaughter. 

7. Although there may be but a short space of time in which to 
form a deliberate purpose, yet where the circumstances were not such 
as to create a well founded apprehension of great bodily harm, so as 1o 
justify the killing, or there was not such a provocation as to produce an 
irresistible passion so as to reduce the killing to manslaughter, the law 
will presume that the accused acted with sufficient deliberation, or with 
such a total disregard of human life as to create the presumption of gen- 
eral malice. 

8. Same — instruction as to malice in act. On the trial of one for mur- 
der, the court instructed the jury that, if they believed from the evidence 
certain named facts, and Unit defendant then and there deliberately and 
intentionally stabbed the deceased, etc., as charged in the indictment, from 
which death ensued, they should find the defendant guilty. It was urged 



1872.] Peei f. The People. 19 

Statement of the case. 

against the instruction that it did not require the jury to find that the kill- 
ing was done with malice aforethought ; but it was held, that, as the ques- 
tion of malice was not left doubtful by the evidence, the instruction was 
not misleading, the other instructions fully explaining the difference be- 
tween murder and manslaughter. 

9. Crimestal 1lA.w — instruction — reasonable doubt. While it is the gen- 
eral and no doubt the fairer and better practice in the people's instructions to 
instruct the jury that they must believe the defendant's guilt, etc., beyond 
a re.'isonable doubt, and while the omission of those words in all the in- 
structions would doubtless be error, yet where the defendant has the full 
benefit of this principle of law in the instructions given in his behalf, it 
will not be error that the people's instructions do not require the jury to 
believe the necessary facts beyond a reasonable doubt. 

10. Instruction — in criminal case. Instructions should not be vague 
and indefinite, but so clear as to leave no reasonable doubt as to what they 
refer to ; neither should they assume facts which are for the jury to find. 

11. While, as a general rule, the court may properly refuse instruc- 
tions which are not correct, yet in a capital case, and in fact in all 
criminal cases, it is the duty of the presiding judge to see that the law is 
fully and fairl}' given to the jury, that 'they may act intelligently in form- 
ing their verdict, and consequently it is not error to modify instructions 
asked, so as to present the law of the case fully and fairly. 

12. New triaJj— finding on the facts. An appellate court is always re- 
luctant to reverse because a verdict is not supported by the evidence, un- 
less it seems clearly wrong, for the reason that the court below is the best 
judge of the facts, from his opportunity of seeing the witnesses on the 
stand, and hearing them testify, and, from their appearance and manner, to 
form an accurate estimate of the character of the witnesses, and the worth 
of their evidence. 

Writ of Error to the Criminal Court of Cook county ; the 
Hon. William A. Porter, Judge, presiding. 

This was an indictment against Gregori Peri for murder, 
in the killing of Daniel O'Brien. 

The court gave the following instruction, among others, for 
the people : 

" 1st. The court instructs the jury that, if they believe, from 
the evidence, that the defendant, at the time of the alleged 
killing of Daniel O'Brien, was the keeper of a public saloon 
and restaurant, as described by the evidence, and that the said 



20 Peri v. The People. Sept. T., 

Statement of the case. 

O'Brien, with others, peacefully entered said saloon to procure 
some oysters, and did peacefully procure and eat the same in 
said saloon, and that said O'Brien, with Ready and Burke, 
peacefully stood at the counter of defendant to pay for the 
same, and that the defendant accused said Burke of breaking 
a light of glass, and that said Burke denied such charge, and 
that Ready then said he would pay for it, and have no trouble, 
and that he did then pay for it and the refreshments they had 
received, and that a dispute with mere words then arose about 
the change Ready should receive from the defendant, and that 
a dispute of mere words continued between said Burke and 
the defendant about the alleged breaking of the light of glass, 
and that the defendant thereupon, and for no other cause, 
seized a deadly weapon, to- wit, a knife, and held it in a threat- 
ening manner, with the apparent intention of assaulting said 
Burke with said deadly weapon, and that Ready thereupon 
then and there peacefully remonstrated with said defendant, 
with words, against using said deadly weapon upon said 
Burke, and that Ready then only peacefully endeavored to 
prevent said defendant from using said deadly weapon upon 
said Burke, and that said O'Brien then and there merely stood 
at the counter of the defendant as a spectator, in a peaceful 
manner, and did not make or attempt to make any assault or 
attack upon said defendant, and did not use or attempt to use 
any violence upon said defendant, and that the said defendant 
then and there deliberately and intentionally stabbed said 
O'Brien with said deadly weapon, to-wit, a knife, in the ab- 
domen of said O'Brien, in manner and form as charged in the 
indictment, and that said O'Brien died from the effects of such 
stabbing, then the defendant is guilty of willful murder, and 
the jury should find him guilty of murder." 

The court refused the following instructions asked by the 
defendant: 

"11. The jury are instructed that, although the intent to 
commit the crime of murder may be formed at the instant of 



1872.] Peri v. The People. 21 

Opinion of the Court. 

striking the blow, yet the jury must believe from the evidence, 
before they should convict of murder, that that instant must 
occur in an interval between the assault and provocation, suf- 
ficient for the voice of reason and humanity to be heard." 

"12. There must be an interval between the assault and 
the provocation sufficient for the voice of reason and humanity 
to be heard, provided the jury believe there was an assault 
and provocation." 

Mr. A. VanBuren, for the plaintiff in error. 

Mr. Charles H. Reed, State's Attorney, for the people. 

Mr. Justice Walker delivered the opinion of the Court : 

At the December term, 1871, of the criminal court of Cook 
county, the grand jury found an indictment against plaintiff 
in error, charging him with the murder of Daniel O'Brien. 
After the cause was twice continued, it was tried at the April 
term, 1872, and resulted in a verdict of murder, and the jury 
fixed death by hanging as the penalty. When the jury re- 
turned their verdict, plaintiff in error entered a motion for a 
new trial, which was subsequently overruled, and at the same 
term the court rendered judgment on the verdict, and sen- 
tenced the accused to be hanged ; and the case is brought to 
this court on error, and various grounds are urged for a re- 
versal. 

The first urged is, that the court had no power to try the 
prisoner, because there was no order of the court directing 
the clerk to issue a writ of venire for the jury which tried 
accused. 

So far as we can see, no such order appears in the record 
brought to this court. But when there is such a writ issued 
by the proper officer, under the seal of the court, regular in 
all respects, so far as we know from this record, and as no 
motion was made to quash the writ and to challenge the ar- 
ray, we must presume that the writ was authorized, and the 



22 Peri v. The People. [Sept. T., 

Opinion of the Court. 

proper order M^as made. Such an order was, we must con- 
clude, general for a jury for the term, and not special for this 
particular case, and in making the transcript the clerk would 
probably not, unless required, embody it in the transcript. 
There is not enough appearing in this case to overcome the 
presumption that the writ was regularly issued. 

Again, the jury were elected and tried by accused, and ac- 
cepted by him as lawful men, without making this objection. 
From this we must presume that the objection did not in fact 
exist, or an exception would ha^-e been made, and the facts 
upon which it was based have been preserved in the record. 
We are unable to say that this was error. 

After the jury had returned their verdict, plaintiff in error 
entered an objection against the court proceeding further with 
the case, because he had been, as he alleged, tried at a former 
term of the court on a charge of having murdered one 
Michael Ready, and was, on that trial, found guilty of mur- 
der; and that the verdict in that case fixed his punishment by 
confinement in the penitentiary during his natural life. It 
was also said, in the reasons filed, that this indictment grew 
out of the same affray, and the homicide chai'ged was a part of 
the same transaction, and that accused had not been sentenced 
under the prior verdict; and it is urged that the court had no 
power to render judgment on the verdict in this case until 
after judgment should be rendered and execution had on tlie 
verdict on the former trial. 

This record contains no evidence that such a trial was ever 
had or verdict found. But if it did, that would constitute 
no valid reason for refusing to render judgment on this ver- 
dict. It is not pleaded, nor could it be, as a former judgment 
in bar of this proceeding, and there can be no doubt that, 
where the people have obtained verdicts against an individual 
on several criminal charges, they may have judgment on each, 
or may abandon sucii as they choose, and have judgment on 
the others. If the people so desired, they were at liberty to 



1872.] Peri v. The People. 23 

Opinion of the Court. 

abandon the verdict on the previous trial, if one was ever had, 
and have a judgment and execution on this. 

There is nothing in the record lapon which to base this ob- 
jection, and the reasons suggested by plaintiff in error being 
unsupported by any proof, we fail to see any ground upon 
which it can be based. 

Overruling the motion for a new trial is earnestly urged as 
an error that should reverse the judgment. 

The ground assigned for a new trial, that the court refused 
to quash the indictment, seems to have been abandoned, as no 
reasons therefor are suggested in argument. AVe fail to see 
that there are any objections to it, either in substance or in 
form. It therefore follows that this ground was properly dis- 
regarded by the court below. 

As to the question whether the evidence supports the ver- 
dict, from a careful examination of all that is contained in the 
record, we are satisfied that it is sufficient. Whilst it appears 
that there was but a short space in which to form a deliberate 
purpose, still, when we can see no such assault as to create a 
well founded apprehension of great bodily harm, or such prov- 
ocation as was calculated to produce an irresistible passion 
on the part of plaintiff in error, as would justify the homicide, 
or reduce it to manslaughter, we must conclude accused acted 
with sufficient deliberation, or with such a total disregard for 
human life as to create the presumption of general malice. 

In the absence of apparent well founded danger of great 
bodily harm, or such provocation as is calculated to excite 
irresistible passion, the law implies malice. And in this case 
the jury were warranted, from the evidence, in so finding, and 
if there was malice aforethought, then the homicide was mur- 
der. 

To constitute malice, it is not necessary that the party 
should brood over and meditate upon the performance of the 
act for a considerable space of time; but it is sufficient if it 
were deliberate and intentional, without apparently well 
founded danger of great bodily harm, or where there is not 



24 Peri v. The People. [Sept. T., 

Opinion of the Court. 

such provocation as in law reduces the homicide to man- 
slaughter; and the jury, as practical men, 'must determine 
whether the act was so deliberately done as to show that there 
was the steady fixed purpose that proceeds from malice. 

Again, the motion for a new trial was addressed to a'nd 
considered by the judge who tried the cause. He saw all of 
the witnesses on the stand, heard them testify, and from their 
appearance, intelligence and manner, had full opportunity to 
form an accurate estimate of the character of the witnesses, 
the worth of their evidence, and the true nature of the charge 
against the prisoner. On the other hand, we, as an appellate 
court, only see the language used by the witnesses as it ap- 
pears on paper, and are deprived of much that always enables 
those present to judge more accurately of the weight of evi- 
dence than others who only see it reported. For this reason 
the appellate court is reluctant to reverse because a verdict is 
not supported by the evidence, unless it seems to be clearly 
wrong. 

The judge who tried this case has solemnly said, by over- 
ruling this motion, that he believes, beyond a reasonable 
doubt, that accused was guilty of murder, otherwise he would 
have granted a new trial ; and a majority of the court, after 
considering the entire evidence as it appears in the record, 
can not say that he erred. 

It is urged that the first of the people's instructions was 
wrong, because it fails to inform the jury that they must be- 
lieve the facts supposed in the instruction to be true beyond 
a reasonable doubt, before they could find the accused guilty. 
The law declares the jury must believe the defendant, in all 
criminal cases, to be guilty beyond a reasonable doubt, before 
they can convict. The law has always given the prisoner the 
benefit of such a doubt, and if the jury were not so instructed, 
it would no doubt be error. And the practice is believed to 
be general for the court to so state the law in the people's in- 
structions, and such is no doubt the fairer and better practice. 



1872.] Peri v. The People. 25 

Opinion of the Court. 

But was its omission from the people's instructions in this case 
an error? 

On a careful examination of the instructions, we find that 
by the fifth of defendant's instructions the jury are told that 
unless they believe beyond a reasonable doubt that the de- 
fendant is guilty, they should acquit; and they are so in- 
formed in his sixth, and what constitutes a reasonable doubt is 
explained in the seventh. These instructions were all given, 
and we can not, after so plain a direction on the part of the 
court, believe that the jury disregarded them. 

In the case of Kennedy v. The People, 40 111. 498, it was 
held that if the jury were properly instructed as to a reason- 
able doubt in a portion of the people's instructions, it was 
not error to omit that expression in others given for the 
prosecution. In principle, this case is like that, and we are 
unable to distinguish them. Nevertheless, if we were not 
satisfied with the finding, or should believe the accused had 
not had a fair trial, we should probably conclude that the 
want of such a direction in each of those given for the prose- 
cution had led to the unsatisfactory result. 

It is again urged against that instruction, that it fails to 
inform the jury that they must believe that accused killed 
deceased, with malice aforethought, before they could find 
him guiltj^ of murder. The instruction requires them to be- 
lieve that the homicide was deliberately and intentionally 
perpetrated, in manner and form as charged in the indictment. 
Where there is no reasonable doubt that there was malice, 
such an instruction would not mislead ; but in cases of doubt, 
it might be otherwise. In this case, what constituted the 
crimes of murder and manslaughter was explained to the 
jury in other instructions, and on the entire record we fail to 
see that the jury were misled as to what the law regards as to 
the malice necessary to murder, and what constitutes man- 
slaughter. 

We have turned to the record, and read all of the instruc- 
tions given for defendant below, and are unable to find that 



26 Peri v. The People. [Sept. T., 

Opinion of the Court. 

the law was not fairly given by them, as they were modified. 
As drawn, they were inaccurate, and should not have been 
given without the modifications that were made. The court, 
no doubt, might have simply refused to give them; but in a 
capital case, in fact in all criminal cases, it is the duty of the 
judge trying them to see that the law is fully and fairly given 
to the jury, that they may act intelligently in forming their 
verdict. From a careful consideration of all the instructions 
given in the case, we are unable to say that the jury w^ere not 
properly instructed, and we are of opinion that no error inter- 
vened in giving the instructions. 

Nor do we see that the court erred in refusing to give the 
11th and 12th instructions asked by defendant below. If for 
no other reason, because they find there was an assault and 
provocation, when they were facts for determination by the 
jury. Again, they are vague in not informing the jury who 
they should find had committed the assault and given the 
provocation ; whether accused or deceased. Instructions should 
be so clear as to leave no reasonable doubt as to what they 
refer to. 

Was there error in refusing a new trial because the grand 
or traverse jury came from the body of the county, instead of 
from taxable citizens of the city of Chicago ? We will not 
determine whether objections of this character can be raised 
except as grounds to challenge the array. Did the law require 
them to be selected from the tax-payers in the city of Chicago, 
as had been required in the recorder's court before the crim- 
inal court Avas established? The 26th section of article 6 of 
the new constitution declares, "that the recorder's court of 
the city of Chicago shall be continued, and shall be called 
the ' Criminal Court of Cook county.' It shall have the 
jurisdiction of a circuit court, in all cases of criminal and 
quasi criminal nature, arising in the county of Cook, or that 
may be brought before said court pursuant to law." 

This provision of the constitution invests this court Avith 
the same jurisdiction of a circuit court; and all the circuit 



1872.] Peri v. The People. 27 

Dissenting opinion of Mr. Justice Scott. 

courts of the State have, and always had, the power to bring 
their juries, both grand and traverse, from the body of the 
<30unty in which such a court is held. No one can question 
this. It then follows that the criminal court became, by force 
of this provision, invested with the same power. If it be 
said that the law conferring the jurisdiction and regulating 
the practice of the recorder's court required juries for that 
court to be selected from the tax-payers of the city of Chicago, 
the answer is obvious, that this provision of that law, being 
repugnant to the power granted to this court by the constitu- 
tion, was repealed by that instrument, and that part of the 
law must give way to its provisions. Whilst some of the 
provisions of that act may have been still in force, we must 
hold this one repealed, and in the obtaining of juries for the 
criminal court, it must be governed by the law regulating the 
qualifications of jurors, and the mode of their selection, and 
the manner in which they are summoned for circuit courts. 
There was, therefore, no error in bringing the jurors, having 
the same qualifications, from the body of the county, as is 
required for the circuit courts. 

After a careful examination of this entire record, we fail to 
find any error; and we are satisfied that plaintiff in error has 
had a fair trial and was properly convicted, and the judg- 
ment of the court below must be affirmed. 

Judgment affirmed. 

Mr. Justice Scott, dissenting : 

I dissent from the judgment of the majority of the court, 
on two grounds — 

First. In my judgment, the facts in evidence leave it doubt- 
ful whether the accused is guilty of the crime of murder or 
only manslaughter. I can not say that the evidence leaves 
no reasonable doubt on my mind as to whether the homicide 
amounts to the crime of murder. 



28 Peri v. The People. [Sept. T., 

Mr. Justice McAllister and Mr. Chief Justice Lawrence, dissenting. 

Second. In this view of the evidence, the first instruction 
given on behalf of the people was highly calculated to mis- 
lead the jury. The instruction recites the main facts proven 
by the prosecution, and the jury are told that if they believe 
those facts — not beyond a reasonable doubt — they will find the 
accused guilty of murder. It leaves out of view the extenu- 
ating facts in evidence that tend to the benefit of the defend- 
ant; and in this regard it was erroneous. It is only from the 
consideration of the entire evidence that the jury would be 
authorized to make up their verdict as to the guilt of the 
defendant. 

The instruction is itself in an objectionable form. If the 
court undertakes, by an instruction, to direct the attention of 
the jury to the evidence in the case, upon which they would 
be authorized to find a verdict, it should direct their attention 
to the entire evidence; as well that which is in favor as to 
that which is against the accused. 

In my opinion, the judgment should be reversed. 

Mr. Justice McAllister, dissenting: 

I can not concur in the opinion of the majority of the 
court. 

There was enough in the circumstances in evidence to make 
it fairly questionable whether the homicide was not commit- 
ted under provocation and in the heat of passion. Such being 
the case, the first instruction asked by the public prosecutor, 
and given by the court, was objectionable. It purports to 
incorporate facts, but excludes everything that might be urged 
on behalf of the accused, and does not require those hypo- 
thetically submitted to be found true beyond a reasonable 
doubt, and there is nothing in any instruction on behalf of 
the people to cure the defect. 

Mr. Chief Justice Lawrence, dissenting: 

I concur with Mr. Justice Scott and Mr. Justice McAl- 
lister. 



1872.] K ASKFA. ]. v.Bnow^ etctl. 29 

Syllabus. 



Stephen Haskell 

V. 

Baeak Brown et al. 

1. Chancery pbactice — amendment of answer on hearing. On the hear, 
ing of a suit in chancery, the court permitted the defendants to amend 
their answer, which was not sworn to, so as to admit proof of new facts in 
defense, against the objection of the complainant: Held, that this was a 
matter of discretion in the court, and as the answer was a mere pleading, 
the amendment was properly allowed to avoid a variance. 

2. FoRECLOSTTRE — equitable set-off or recoupment. Where a party sub- 
scribing to the capital stock of a railroad company, executed his note for 
his subscription, secured by mortgage on real estate, and the company at 
the same time guarantied to him that his annual dividends should pay the 
interest on the note, and that in consideration of the transfer of those divi- 
dends the company would pay the interest on the same, and indemnify the 
maker against the payment of any interest, and against the payment of the 
principal also, and it happened that there were no dividends, and the stock 
was worthless at the maturity of the note : Held, that, as against the com- 
pany, on bill to foreclose, the facts could be set up as a defense, on the 
ground of recoupment or equitable set-off, and that the same rule applied 
to a purchaser of the note and mortgage before maturity on bill by him to 
foreclose. 

3. Assignment — to cut off defense. Where a railroad company nego- 
tiated one of its bonds, and delivered with it the note of the defendant as 
security, but without indorsement, but the bond contained an assignment 
of such note, which was made transferable with the bond, and not other- 
wise : Held, that the bond of the company was the principal and the note 
the incident, and was not transferred as an independent instrument, and 
that such a transfer of the note should have put the party receiving it and 
all others purchasing it, upon their guard as to any defenses the maker 
might have. 

4. Same — rule in equity. But even had the note been indorsed in the 
usual mode before maturity, the assignee by the proceeding in equity to 
collect the same by the foreclosure of a mortgage given to secure it, which 
is not negotiable, will take subject to any defense the maker had as against 
the original mortgagees, because in such suit the mortgage is the founda- 
tion of the suit, and the note is only the incident or evidence of the debt. 

Appeal from the Circuit Court of McHenry county; the 
Hon. Theodore D. Muephy, Judge, presiding. 



30 Haskell v. Brown et al. [Sept. T., 

Opinion of the Court. 

Messrs. Moore & Caulfield, and Mr. M. C. Johnson, for 
the appellant. 

Mr. James H. Slavin, for the appellees. 

Mr. Justice Breese delivered the opinion of the Court : 

This was a bill in chancery, in the McHenry circuit court, 
brought by Stephen Haskell, to foreclose a mortgage, he 
claiming as equitable assignee thereof. The note, to secure 
which the mortgage was executed, was made by one Barak 
Brown to the Kenosha and Rockford Railroad Company, pay- 
able in five years from the ]Oth day of May, 1857, with in- 
terest thereon at the rate of ten per centum per annum, pay- 
able annually. The note and mortgage Avere assigned to com- 
plainant before maturity, and for a valuable consideration paid 
by him in money. It is alleged the whole amount is due, with 
interest from the 25th day of January, 1858, and that the land 
described in the mortgage is scant security for the note and 
interest due. 

It is further alleged that Brown, on the 5th day of April, 
1855, had executed a mortgage on the same premises to one 
Edwin Backus to secure the payment of one hundred dollars, 
and that he, Backus, long after the assignment of the first 
described note by the railroad company to complainant, name- 
ly, on the 3d of July, 1860, filed his bill, for the use of one 
Lyman Backus, in the McHenry circuit court, to foreclose 
this mortgage, making Brown and the railroad company de- 
fendants; that the railroad company was not brought before 
the court by the service of process or by publication, and that 
complainant had no notice of the pendency of such proceed- 
ings. 

In this suit, on the 19tli of xSovember, 1860, a decree of 
foreclosure was rendered against Brown for one hundred and 
fifty-five dollars and fifty-four cents, principal and interest due 
upon the note. There was a sale under this decree thereafter, 
and Edwin Bachus became the purchaser for the sum of one 



1872.] Haskell v. Brown et al. 31 

Opinion of the Court. 

hundred and eighty-three dollars and fifty-six cents, and on 
the following day assigned the certificate of purchase to one 
William G. Billings. 

Brown, Edwin and Lyman Backus and Billings were made de- 
fendants, together with the Kenosha and Rockford Railroad 
Company, and other railroad companies supposed to have an 
interest in the subject matter, were made defendants, who were 
all brought into court by personal service or by publication. 

The prayer of the bill was to allow complainant to redeem 
from the sale under the Backus decree, and all rights acquired 
by the sale thereunder be vested in complainant. 

Brown and Billings answered, denying the power of the 
railroad company to take the note; that it was executed with- 
out any consideration ; and Brown further alleges that he 
was requested by the authorized agents of the company to 
subscribe to its capital stock the sum of five hundred dollars, 
and, as an inducement so to do, they represented to him that 
the company was duly organized, and was entirely solvent, and 
did not need to use the said stock or the avails thereof for the 
construction nor for the equipment of the road, for the reason 
that the company had already, in money paid for stock and 
raised from the bonds of the company sold in the market at 
par, sufficient to pay all expenses for constructing, equipping 
and operating the road, and that the stock which defendant 
Brown was requested to subscribe, would be a good invest- 
ment, and he could receive and hold it without paying for it, 
by reason that dividends would be paid on it more than suf- 
ficient to pay the interest on the note. 

It was further alleged that the railroad company did then 
and there wan-ant and agree that if he, Brown, would make 
and sign the note and the mortgage in question, the company 
would issue to him an equal amount of paid stock in the com- 
pany, which was worth dollar for dollar, and upon which the 
company would pay annual dividends of at least ten per 
«ent; and that it was then and there agreed by parol and in 
writing, that the dividends which would be paid to him 



32 Haskell v. Brown et al. [Sept. T., 

Opinion of the Court. 

annually, on the stock, should be equal in amount to the an- 
nual interest on the note; and that the company, in consider- 
ation of those dividends, would pay the interest on the note 
and indemnify Brown against the payment of any interest and 
note also. The defendants allege that, influenced by these 
representations, Brown executed the note and mortgage, and 
that they became part and parcel of the agreement. 

The defendants deny the legal existence of the company 
and its authority to take a note and mortgage, and allege that 
they had no money or property or credit wherewith to con- 
struct, equip or operate their railroad ; that the capital stock 
was then and is yet, and always will be, worthless; that there 
has never been any dividend on the stock, no earnings or 
money wherewith to make dividends, and that the company 
was then, and yet is, and always will be, insolvent; that their 
bonds were worthless in the market, all of which was well 
known to the railroad company, and its agents then well knew, 
and that they knew their representations to be false when they 
made them, and that they were made with intent to defraud 
the defendant Brown. They deny that any certificate of stock 
was ever issued to defendant Brown, or to any one for him; 
that the company did not pay the interest on the note, nor in- 
demnify defendant Brown against it, although the company 
had in its own hands all the earnings of the road, and all 
its money and property. They allege that, if complainant 
bought this note and mortgage, he did so of his own wrong, 
and with full knowledge of all these facts. 

To this answer a replication was put in, and the cause went 
to a hearing, which resulted in a decree dismissing the bill. 

To reverse this decree the complainant appeals. 

On the hearing, one Asa Farnam being under examination as 
a witness on behalf of the defendants, when interrogated about 
a matter which complainant insisted had not been alleged in 
the answer, the court, on application of defendants, permitted 
an amendment to the answer, so as to include the matter to 
which the testimony was applicable, and against the objection 



1872.] Haskell v. Brown et al. 33 

Opinion of the Court. 

of complainant, to which complainant took exception, and as- 
signs it as one of the errors. 

We do not think there is any force in this objection, as the 
answer was not under oath. It was mere pleading, which, to 
subserve the purposes of justice, can at all times, before judg- 
ment or decree, be amended, in the discretion of the court. 
The rule is correctly stated in Martin et al. v. Eversal et al. 36 
111. 222, in which case there was a sworn answer. This court 
said, in chancery proceedings the court will permit an amend- 
ment on the hearing for the purpose of avoiding a variance. 
In the cause before us, the amendment was made to avoid a 
variance. The case of Moshier v. Knox College, 32 111. 155, is 
to the same effect, and so is Wylder v. Crane, 53 ib. 490. 

There is much of the answer of defendant Brown which 
could not avail as a defense, even against the railroad com- 
pany, if proved, but it is distinctly alleged in the answer that 
the company, by its agents, guarantied that the stock sub- 
scribed by Brown would pay annual dividends of ten per cent 
at least, and that it was agreed, at the time of the subscrip- 
tion, both by parol and in writing, that those dividends, which 
would be paid to him annually on the stock, should be equal 
in amount to the annual interest on the note, and that, in con- 
sideration of those dividends, the company would pay the in- 
terest on the note and indemnify Brown against the payment 
of any interest and against the payment of the note also. 

This agreement was in the following form, as found in the 
record : 

Incorporated by the State of Illinois, 1857. 

No. 256. Five shares. 

Kenosha & Rockfoed Eailroad Company. 

Capital, $800,000. Shares, $100 each. 

This is to certify that Barak Brown is entitled to Five 
Shares in the Capital Stock of the Kenosha & E-ockford Rail- 
road Company, upon which shares each One Hundred Dollars 
3 — 65th III. 



34 Haskell v. Brown et ah [Sept. T., 



Opinion of the Court. 



have been paid. Transferable personally or by attorney on 
the books of the said company, on surrender of this certifi- 
cate. 

CK ^ "R T? ^ '^\\Q said Barak Brown having ex- 

J Qq I edited a Note and Mortgage in favor 

( Seal. J of the Kenosha & Rockford Railroad 

Company, or order, bearing date on the 
11th day of April, 1857, payable in five years from the 10th 
day of May, 1857, for the purpose of loaning the money to 
pay for said stock, and having assigned to this company 
enough of the interest and dividends of said stock to pay the 
interest on said mortgage, and this company having guaran- 
tied the payment of the principal and interest upon said mort- 1 
gage, the holder of this certificate will not receive any divi- 
dends until said note is paid. Whereupon he will be entitle( 
to have all the surplus dividends over and above what ha 
been paid by this company on said note. 

E. H. Baker, Sec. C. H. Spafford, Pres. 

A. C. Spafford, Treas. 

This agreement adhered to the mortgage, and in a suit to j 
foreclose it by the original mortgagee, the railroad company, ' 
it could be set up as a defense on the ground of recoupment 
or equitable set-off. It is an express stipulation on the part 
of the company, made at the time of the execution of the note 
and mortgage, that the company would protect them, and in- 
demnify Brown against the payment of the note and the in- 
terest. 

There having been no dividends, the stock being worthless. 
Brown, had he paid the note, would have had a valid claim 
against the company for damages; and not having paid the 
note, could set up the damages in a suit brought by the com- 
pany for the collection of the note. This was said by this 
court in Peck v. Bligh et al. 37 111. 317, a case, in its leading 
facts, not essentially different from this. 



1872.] Haskell v. Brown et al. 35 

Opinion of tlie Court. 

But it is said in this case, this suit is brought by an assignee 
for value, and without notice of any defense, and befoi*e ma- 
turity of the note. 

Appellant, in his testimony taken on the hearing, states that 
neither the note nor mortgage was assigned to him by any 
written assignment; that he purchased them as securities 
transferable by delivery, and took them in that way only. 
Again, he states he purchased the note, with the mortgage re- 
ferred to, of Joseph D. Smith, in 1858 or 1859, and paid there- 
for four hundred and fifty dollars — bought it for an invest- 
ment, without notice of any defense to it. , 

The record contains this exhibit, introduced in evidence by 
the defendant Brown : 

No. 67. UNITED STATES OF AMERICA. $500.00 

State of Illinois. 

KENOSHA AND ROCKFORD RAILROAD COMPANY. 

Know all Men by these Presents : That the Kenosha & Rock- 
ford Railroad Company is justly indebted and promises to pay 
to Stephen Haskell, or bearer, Five Hundred Dollars, on the 
10th day of May, 1862, at the People's Bank, in the city of 
New York, together with interest thereon from and after the 
10th day of May, 1857, at the rate of ten per cent per an- 
num, payable on each 10th day of November and May, semi- 
annually thereafter, on the presentation and surrender of the 
annexed coupons at said bank. For the payment whereof, the 
said company hereby bind themselves firmly by these presents, 
and for the better security of such payments being made to 
the holder hereof, the said company have assigned and trans- 
ferred, and by these presents do hereby assign and transfer to 
the said holder of this bond a certain note for the sum of Five 
Hundred Dollars, executed by Barak Brown, together with a 
mortgage given collateral to and for the purpose of securing 
the payment of the same, dated on the 11th day of April, 
1857, payable in five years from the 10th day of May, 1857, 



36 Haskell v. Bkown et al. [Sept. T., 

Opinion of the Court. 

with interest at the rate of ten per cent per annum, which 
said note and mortgage are hereto appended, and are transfer- 
able in connection with this bond to any parties or purchaser, 
whomsoever, and not otherwise. And the said company do 
hereby authorize and empower the holder of this bond at any 
time, in case said company shall fail to perform any of the 
foregoing stipulations by neglecting to pay either principal op 
interest on this bond when the same shall become]due, to proceed 
and foreclose the said mortgage, or take such other legal rem- 
edy on said note and mortgage against said mortgagor, or 
against this company, on this present bond, or on both, as shall 
seem proper and expedient to said holder hereof. The holder 
hereof may surrender the same, with the securities and un- 
matured coupons attached, to the secretary of this company, 
at any time within five years from the date hereof, and receive 
in full payment of the principal of the same. 

Five (5) Shares of the Capital Stock of said Company fully 
paid. 

In testimony whereof the said Company have 
hereto caused to be affixed their corporate seal, 
and these presents to be subscribed by their 
[seal.] president and countersigned by their secretary. 
By order of the board of directors, this 1st Oct. 
1857. 
E. H. Baker, 8ec. C. H. Spaffoed, Pres. 

This exhibit explains the nature of the transaction by which 
appellant became possessed of this note. It shows a purchase 
by him of one of the bonds of this railroad company, the pay- 
ment secured by this note and mortgage in controversy. This 
bond was attached to the mortgage, which was transferred with 
the bond and by that instrument. This corroborates the tes- 
timony of appellant, that neither the note nor mortgage was 
assigned to him by any written assignment; that he purchased 
them as securities transferable by delivery, and took them in 
that way only. 



1872. ] Haskell v. Brown et al. 37 

Opinion of the Court. 

As was said by this court in Peck v. Bligh et al. supra, it 
has been several times decided by this court that a guaranty 
of a note by the holder amounts also to an assignment, and 
passes the legal title. 

In that case, as in this, the assignment was not by endorse- 
ment on the note, but by an instrument attached to it similar 
to the above exhibit. 

The instrument in that case provided, as in this, that 
the note and mortgage might be transferable, in connection 
with this bond, to any party or purchaser, and not otherwise. 

The reason for the insertion of this clause is, perhaps, to 
be found in the contract between the company and Brown, 
that they would pay the note and interest. 

When, therefore, it issued this bond to appellant, providing 
as it does that the note and mortgage should be transferred 
only in connection with the bond, it must be considered as 
issuing the latter as an independent instrument, and instead 
of seeking to assign and guarantee the note, which it could 
have done in a few words written upon it, it sought to make 
its own bond the principal, and the note and mortgage the in- 
cident. Peck V. Bligh et al. supra. A transaction so worded 
should have put the party to it, and all other purchasers, on 
their guard. 

But admitting there was an assignment of this note in the 
usual mode of assigning such papers, it carried the mortgage 
with it, as an incident, but only in equity. The mortgage 
was not assignable at common law, nor was it assignable under 
our statute. The assignment of the note, therefore, effected 
only an equitable transfer of the mortgage. 

As was said in Olds v. Cummings, 31 111. 188, mortgages are 
not commercial paper. That is based upon personal credit, 
and the reliance of a purchaser of such is upon personal se- 
curity. When a remedy is sought upon such paper, all the 
rights and defenses incident to commercial paper will be en- 
forced in the courts of law. But where the remedy is sought 



38 Haskell v. Brown et al. [Sept. T., 

Opinion of the Court. 

through the medium of the mortgage, when that is the foun- 
dation of the suit, and the note is used merely as an incident 
to ascertain the amount due on the mortgage, then the courts 
of equity, to which resort is had, must pause and look deeper 
into the transaction, and see if there be any equitable reason 
why it should not be enforced. 

When resort is had to a court of equity to foreclose the 
mortgage, that court will let in any defense which would have 
been good against the mortgage in the hands of the mortga- 
gee himself, and this, regardless of the fact that the assignee 
of the note may have purchased it in good faith, and before 
maturity. 

The court further say, he who buys that which is not assign- 
able at law, relying upon a court of chancery to protect and 
enforce his rights, takes it subject to all infirmities to which 
it is liable in the hands of the assignor. 

The assignor here is the railroad company, and it can not 
be denied its written agreement to pay this note and mort- 
gage could be set up as a defense, were it seeking to foreclose 
the mortgage. 

This agreement adhered to the instrument, in equity, and 
could be available as a defense there, against them. It is 
equally so against appellant, for he stands in no better position 
in a court of equity than the original mortgagee, the Keno- 
sha and Rockford Railroad Company. 

Appellant having no right to foreclose this mortgage, can 
have none to redeem from the sale under the Backus' decree. 

The decree of the court below is affirmed. 

Decree affirmed. 



1872.] CoMSTOCK V. Bkosseau et aL 39 

Syllabus. 



Gardner P. Comstock 

V. 

Louis P. Brosseau et aL 

1. Vendor and vendee — right to declare forfeiture. Where an execu- 
tory contract for the sale and conveyance of real estate gave the vendor an 
option to declare a forfeiture of the contract and all payments made, on 
failure of the vendee to meet any of the deferred payments, or breach of 
any of his covenants : Held, that the vendor could not rightfully declare 
a forfeiture of the contract, and at the same time retain the notes of the 
vendee, given for the deferred payments. He should surrender, or offer 
to surrender, such securities. 

7. Same — right to resume possession. Where the plaintiff, holding the 
legal title to certain mill property, by an executory contract, sold the same 
to A and B, taking notes for the unpaid purchase money, reserving the 
right to declare a forfeiture of the contract for non-payment, and after two 
of the notes matured, the vendor, without having declared a forfeiture, 
took possession, claiming that B surrendered the possession to him : Heldy 
that, not having declared a forfeiture, he had no right to resume posses- 
sion without the consent of the vendees; and that even if B had given 
such consent, it could not affect the rights of A, and the most that the 
vendor could claim was to occupy the premises as a tenant in common 
with A. 

3. Trespass — when the damages must ie shown. The plaintiff, holding 
the legal title to mill property, bargained for the sale of the same to A 
and B, taking their notes for the unpaid price, reserving a right to forfeit 
the contract for non-payment of any of the notes. Default was made 
by the vendees, in not paying the two first notes when due. The vendor 
then took possession of the mill, claiming that B had assented to it, but 
which was denied. At this time, the vendor had not declared any forfeit- 
ure, and was not in a position to do so, he not having surrendered, or 
offered to surrender, the notes. He continued in possession about 12 days, 
when A, finding no one in the mill, re-entered. The vendor sued him and 
his servants in trespass. The jury found for the defendants, and this court 
afiirmed the judgment on such finding; there being no injury shown to 
have been committed by the defendants to the person or property of the 
plaintifl", and the court holding that if B surrendered his possession, that 
only gave the plaintiff the right to possession jointly with A. 

4. New triax — trespass — to recover vindictive or nominal damages. It 
IS a well settled rule of practice in this State that a new trial will not be 



40 CoMSTOCK V. Brosseau et al [Sept. T., 



Statement of the case. 



awarded to enable a party merely to recover vindictive or nominal dam- 
ages. 

5. Trespass — right of an intruder in possession. Where a party obtains 
the actual possession of real estate wrongfully, and such possession is in- 
vaded bj^ one having a right to possession, the wrongdoer in such case can 
not recover for any injury done to the real estate ; but if the party is forci- 
bly ejected, his person injured, or any injury done to his personal prop- 
erty upon the premises, he may recover even as against the owner, and 
this whether the plaintiff's possession was rightful or not. 

Appeal from the Circuit Court of Kankakee county; tlie 
Hon. Charles H. Wood, Judge, presiding. 

This was an action of trespass, brought by the appellant, 
against Louis P. Brosseau, Joseph Zace and John B. Martin, 
for forcibly breaking and entering the mill claimed by the 
plaintiff. The plaintiff held the legal title to the premises, 
as security for moneys advanced by him for the real owners, 
Martin and others. Before the alleged trespass, the property, 
by an arrangement of the several parties in interest, was sold 
to John B. Martin and Louis P. Brosseau, for 1$9898.37, of 
which sum $4000 was paid at the time, and the balance was 
to be paid as follows : $1000, in eight months ; |1200, in one 
year; $1237.74, in two years; $1232.74, in three years, and 
$1227.71, in four years, according to the tenor and effect of 
five promissory notes, bearing interest at the rate of ten per 
cent per annum, the interest to be paid annually. 

A contract for the sale of the mill property was executed 
by the plaintiff, Comstock, and Martin & Brosseau, which pro- 
vided for a conveyance upon payment of the notes. The 
contract further provided : " It is severally agreed between 
said parties that, in case of the failure of either party to per- 
form the above provisions of this contract, they shall be 
liable for, and pay to the other party, all the damages result- 
ing from such failure; and in case of failure of the said 
party of the second part to make either of the payments, or 
perform any of the covenants on their part hereby made and 
entered into, this contract shall, at the option of the party of 



1872.] 'CoMSTOCK V. Brosseau et al. 41 



Opinion of the Court. 



the first part, be forfeited and determined, and the party of 
the second part shall forfeit all payments made by them on 
this contract, and such payraehts shall be retained by the said 
party of the first part, in full satisfaction and in liquidation 
of all damages by him sustained, and he shall have the right 
to re-enter and take possession of the premises aforesaid." 

Mr. James N. Ore, for the appellant. 

Mr. W. H. EiCHAEDSON, for appellee Martin. 

Mr. J. Brosseau, for the other appellees. 

Mr. Justice Scott delivered the opinion of the Court: 

This was an action of trespass, brought by the appellant, 
against the appellees, in the Kankakee circuit court. 

The alleged trespasses consisted of breaking in a Avindow 
and entering a mill, claimed, at the time, to be in the posses- 
sion of the appellant, and in damaging personal property 
therein situated. 

On the trial, the appellees were found not guilty. There 
can be no question the finding as to Martin was correct. In- 
deed no other verdict as to him, in any view, could be per- 
mitted to stand. He was not present, and the weight of the 
evidence is that he neither advised nor encouraged the com- 
mittina: of the acts that were done. 

The only doubt that can arise in the case is as to the guilt 
of Brosseau. The other appellee, Zace, was simply a hired 
man, and if the entry of Brosseau can be justified, he can 
justify under him. 

The mill, which is the subject of this controversy, was 
built by Brosseau, his brother and a Mr. Owens. The last 
named parties sold their interest to John B. Martin, Jr., and 
thereupon the contract shown in evidence was executed. It 
is an agreement that the appellant will convey the mill prop- 
erty to Brosseau & Martin, on their compliance with its 



42 CoMSTOCK V. Brosseau et al. [Sept. T., 

Opinion of the Court. 

terms. It provides for a forfeiture, in case of non-perform- 
ance, at the option of the appellant. The contract bears date 
the first day of March, 1869, and recites that Brosseau & 
Martin had executed and delivered to appellant their five 
promissory notes, payable respectively in eight months, one, 
two, three and four years thereafter, amounting, in the aggre- 
gate, to $5898.37; all of which were to be paid before the 
conveyance was to be made. The lots on which the mill had 
been erected cost about $720, and the principal part of the 
indebtedness secured on the property, seems to have been for 
borrowed money, the appellant holding the legal title as secu- 
rity. 

Previous to, and at the making of, the agreement, Brosseau 
& Martin had been in the exclusive possession of the mill, 
and so continued up to the 18th day of October, 1870. 

On that day, appellant insists, the mill being unoccupied, 
Martin gave him the keys, and surrendered the property to 
him. This, Martin explicitly denies. It is not pretended 
that Brosseau consented to the surrender. The books, and 
some articles of personal property belonging to the firm, 
still remain in the mill. At all events, on that day the ap- 
pellant, either with or without the consent of Martin, did 
take possession of the mill, and ran it up to the morning of 
the 30th of October, when Brosseau, finding no one in it, re- 
entered and took possession. 

At the date of these transactions, only two of the notes 
mentioned in the agreement had become due, neither of which, 
however, had been paid, but the appellant had not chosen to 
exercise his option to declare the contract forfeited for non- 
payment. 

On the 19th day of October, the next day after he took 
possession of the mill, he gave Brosseau & Martin notice, in 
writing, unless all arrearages and damages were paid within 
30 days from the service of notice, he would declare a forfeit- 
ure, and determine all their rights under the contract. No 
forfeiture had then been declared, and if payment should be 



1872.] CoMSTocK V. Beosseau et al. 43^ 

Opinion of the Court. 

made within the time fixed by the notice, none could be. It 
may be added, the appellant was in no position, at the time 
he took possession of the mill, as he says, to put an end to 
the contract. He still held the unmatured notes, and had 
not previously offered to surrender them. He could not right- 
fully declare a forfeiture and at the same time retain these 
negotiable securities. Staley v. Murphy, 47 111. 241. 

The evidence is quite conflicting as to whether Martin ever 
gave the appellant permission to take possession of the mill; 
but whatever he may have done, it is apparent that it could 
not affect the rights of Brosseau. One obligee in a bond con- 
veying real estate can not surrender the interest of another 
without his consent. Smith v. Sackett, 15 111. 528; Ruffner v. 
McConnel, 17 111. 212. 

If it shall be admitted the appellant was lawfully in pos- 
session of Martin's interest in the property, the utmost that 
could be claimed for him is, that he would be a joint tenant 
with Brosseau; and it would be absurd to hold that one joint 
tenant can deprive his co-tenant of all participation in a com- 
mon right, or maintain trespass against him for entering upon 
his own property, where no violence is used. Jamison v. Gra- 
havi, 57 111. 94. 

If we shall regard the possession of appellant as exclusive, 
still he was himself a mere intruder and a wrongdoer. The 
right of property remained in Brosseau & Martin, Their 
interests had never been cut off by any declaration of forfeit- 
ure, if indeed they could be terminated at all in that way. 
No matter what may have been the rights of Brosseau, he 
could not forcibly eject the appellant, whether his possession^ 
was rightful or not. Reeder v. Purdy, 41 111. 279. 

The ownership of the property remaining in Brosseau & 
Martin, the appellant in no event could recover for damage 
to the realty itself. He could only recover such damages as 
may have directly accrued to him from injuries done to his 
person or property through the wrongful invasion of his 
possession, and such exemplary damages as the jury might 



44 First Nat. Bank, Mendota, v. Smith, etc. [Sept. T., 

Syllabus. 

see proper to award. The principle is that a party who has 
no title to premises can not recover for an injury done by him 
who hath the title. Hoots v. Graham, 23 111. 82; Reeder v. 
Purely, supra. 

In this case, there was no injury to the person, and no 
actual damage to personal property ; and under the most 
favorable view of the law for the appellant, he could only 
recover nominal and such exemplary damages as the jury 
might see fit to give him for the technical invasion of his 
possession. It is a well settled rule of practice in this State 
that a new trial will not be awarded to enable a party merely 
to recover vindictive or nominal damages. McKee v. Ingalls, 
4 Scam. 33; Johnson v. Weedman, 4 Scam. 497. 

No error appearing that could materially affect the merits 
of the case, a majority of the court are of opinion the judg- 
ment must be affirmed. 

Judgment affirmed. 



The First National Bank of Mendota 



Daniel Smith, Collector, etc. 

1. Taxation of nationai, banks. The 41st section of the act of 
congress of June 3cl, 1864, providing for a national currency, expressly 
recognizes the right of a State to tax all shares in the stock of national 
banks, but the Supreme Court of the United States has held, that this tax 
must be levied upon the individual shareholders, and not upon the capi- 
tal stock of the bank in the aggregate. 

2. Same— ptoce where taxable. Under the acts of congress on this 
subject, shares in such banks arc subject to taxation by the State at the 
place where such banks are located and not elsewhere, without regard to 
the domicile or place of residence of the shareholders. 



1872.] First Nat. Baxk, Mexdota, v. Smith, etc. 45 
Opinion of the Court. 

3. Same — limitation of the power of the States. The only limitations upon 
the power of the States to tax the shares of such banks imposed by Con- 
gress are, that they shall not be taxed at any other place than where such 
banks are located ; — that the taxation imposed shall not be at a greater rate 
than -upon other moneyed capital in the hands of individual citizens of the 
State and that the tax so imposed shall not exceed the rate imposed upon the 
shares of any of the banks organized under the authority of the State where 
such banks are located. 

4. Same — power of Legislature to fix situs of shares for taxation. While 
it is true as a general rule, at common law, that personal property has no 
situs of its own, but follows the person of the owner, the rule is one of 
convenience only, and there is no constitutional provision to prohibit the 
legislature from changing the rule. Therefore, the act of 1867 which pro- 
vides for taxing the shares of national banks at the place where such banks 
are located, without regard to the residence of the owners of such shares, 
is constitutional and valid. 

5. The separation of the situs of personal property from the dom- 
icile of the owner for the purposes of taxation is familiar docti'ine in 
the courts of this country, and has been sanctioned by this court. 

6. National BANK — nature of shares. It seems that shares in national 
banks are in the nature of choses in, action. They are mere demands for 
dividends as they become due. The certificates of stock are merely evi- 
dence of the holder's title to a given share in the property and fran- 
chises of the corporation of which he is a member. The bank is the 
trustee of the stockholders, who must come to its counter for their divi- 
dends and their share of assets on final liquidation, and no transfer of 
stock can be completed until shown upon the books of the bank. 

Appeal from the circuit court of La Salle county ; the 
Hon. Edwin S. Leland, Judge, presiding. 

Mr. Frank J. Crawford and Messrs. Crooker & Hun- 
ter, for the appellant. 

Messrs. Mayo & Widmer, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was a bill in equity exhibited in the circuit court of 
La Salle county, by the First National Bank of Mendota, 
against the tax collector of the township of Mendota, in which 
the bank was situated, to restrain the collection of the taxes 



46 FiEST Nat. Bank, Mendota, v. Smith, etc. [Sept. T., 

Opinion of the Court. 

assessed for the year 1871, against the stockholders of the bank, 
upon their respective shares of stock. The defendant de- 
murred to the bill. The court sustained the demurrer, and 
no amendment of the bill being proposed, it was dismissed. 
The complainant appealed to this court. 

The ground upon which the bill seeks to restrain the col- 
lection of these taxes is, that the taxes are levied in La Salle 
county against all the shareholders, while only a part of them 
reside in that county, and the others reside in Bureau county. 
The position taken is, that there is no power to levy the tax 
against the shareholders residing in Bureau county, because 
their shares must be considered as having their situs only in 
the county where the holders reside. Therefore the taxes, as 
respected all that class, were illegal and void, and being ille- 
gal and void as to them, they were likewise as to stockholders 
residing in the county where the bank is located, by operation 
of the rule of the constitution requiring uniformity. For 
these reasons, and because the bank is trustee of all the 
stockholders, it is insisted that upon the ground of avoiding 
multiplicity of suits, the bill can be maintained by the bank. 

The propositions upon which this bill is based, when spe- 
cifically stated, are briefly these : (1) That in order to a valid 
tax the legislature must have power or jurisdiction over the 
person or property in the county where the tax is authorized 
to be levied. (2) That, inasmuch as a portion of the owners 
resided out of the county, though in the State, and the situs 
of their shares was at their domicile, the legislature was 
powerless to change that situs, so that there could be no juris- 
diction of either the person or property in the county of the 
bank, and, therefore, as to all that class of owners, the tax 
was void. And, lastly, inasmuch as the tax was void in respect 
to owners of shares who did not reside in La Salle county, the 
tax was likewise, under the constitutional rule of the State re- 
quiring uniformity and equality, void in respect to those 
who did reside in that countv. 



1872.] First Nat. Bank, Mendota, v. Smith, etc. 47 

Opinion of the Court, 

The 41st section of the act of congress passed in 1864, 
expressly recognizes the right of the States to tax all shares 
in the stock of national banks. Notwithstanding this recog- 
nition, the right was soon denied by the banks; and the 
question first came before this court in the case of the People 
V. Bradley, 39 111. 120. It was there held that the stock was 
taxable, as had previously been held by the court of appeals 
in the cases of the City of Utica v. Churchill, and Van Allen v. 
Supervisors, 33 N. Y. 162. 

In Bradley's case, as in the New York cases, the tax was 
levied upon the capital stock of the bank in the aggregate, 
and not upon the individual shareholders. These cases were 
taken to the Supreme Court of the United States, and reversed 
upon the sole ground that the tax must, under the act of 
Congress, be levied upon the individual shareholders. 3 
Wallace, 572; 4, ib. 459. In this mode, it was held the 
shares could be taxed. 

In obedience to this decision of that court, our legislature, 
in 1867, passed an act requiring the taxes to be assessed upon 
the individual shareholders " in the county, town or district 
where such bank or banking association is located, and not 
elsewhere, whether such stockholders reside in such county, 
town or district or not." 

Having successfully resisted the attempt to tax the stock 
of the bank as a corporation, as appears by the cases referred 
to, it is now sought to prevent taxation of the stockholders 
upon their shares. This language is considerately employed, 
and it is believed to be not too broad ; because, as will be 
presently seen, if the grounds now taken on behalf of the stock- 
holders are maintainable, it will only be necessary that the 
stock of the various national banks in the State shall be held 
in the name of non-residents, in order to withdraw the shares 
altogether from the reach of State legislation for taxation. 

Before proceeding further in this case, it should be observed, 
that the question involved depends entirely upon the laws 



48 First Nat. Bank, Mendota, v. Smith, etc. Sept. T., 



Opinion of the Court. 



of this State, and is in no manner embarrassed by any act of 
congress. 

The 41st section of the act of congress above referred to, 
under which these banks are organized, required State taxes to 
be imposed " at the place where the bank is located, and not 
elsewhere." But by an act of Feb. 1868, congress declared 
these words — " place where such bank is located, etc.," to 
mean " the State in which the bank is located and not else- 
where." 

This provision places the shares in such banks under the 
taxing power of the State wherein the bank is located, 
and prohibits their being subject to State taxation elsewhere. 
This limitation, with the further ones that the taxation 
imposed should not be at a greater rate than upon other 
moneyed capital in the hands of individual citizens of the 
State where made ; and that the tax so imposed, under the 
laws of any State, upon the shares of the association author- 
ized by that act, should not exceed the rate imposed upon the 
shares of any of the banks organized under the authority of 
the State where such association is located, constitute the 
only limitations by congress on the taxing power of the 
State where the bank is located, none of which have any 
application to this case. Our legislature was therefore left 
at liberty to impose the same tax upon the value of shares in 
national banks located here, which it could upon any other 
moneyed capital of our citizens, and fix the situs of such shares 
in its discretion, unless restrained by our own constitution. 
We have made this reference to the acts of congress in order 
to show that the questions involved depend solely upon the 
laws of the State, and are in no respect embarrassed by any 
laws of congress. 

We will now consider the validity of the arguments urged 
in favor of the exemption of stockholders of such banks 
located within this State, from State taxation, under the act 
of 1867. 



1872.] First Nat. Bank, Mendota, v. Smith, etc. 49 

Opinion of the Court. 

The counsel for appellant cite as authority the case of the 
Union National Bank v. The City of Chicago, decided in 1871 
in the Circuit Court of the United States for the Northern 
District of Illinois. We have been furnished with a copy of 
the opinion delivered in that case, and have given it a very 
careful examination. The same question now under consid- 
eration was presented there, and was decided adversely to 
the right of taxation upon the same grounds which are urged 
by counsel for appellant in the case before us. While we 
have great respect for the opinion of the learned district 
judge who decided that case, we find ourselves unable 
to concur either in his reasoning upon the question or the 
conclusion at which he arrives. 

In order that the position of the court in that case, and that 
of the counsel for the appellant in the case before us, may be 
fairly stated and understood, we quote the language of the 
court, whose reasoning the counsel for appellant adopt as the 
principal foundation for their argument. 

After giving the clauses of our State constitution of 1848, 
requiring uniformity in taxation, the opinion proceeds as fol- 
lows : " And by a series of adjudications of the Supreme Court 
of Illinois, it has become settled law that these provisions are 
restrictions upon the power of taxation by the legislature, or 
any authority under it. All taxes therefore assessed by munici- 
pal corporate authorities must be proportionate and uniform 
within the jurisdiction of the body imposing them. Where 
there is jurisdiction neither of the persons nor property, the 
imposition of a tax would be ultra vires and void. Jurisdic- 
tion is as necessary to valid legislative as to valid judicial 
action. 

" Shares of stock are incorporeal personal property, and as 
such, are held incapable of having any situs save at the domi- 
cile of the owner. In the eye of the law they have in them- 
selves no locality. They accompany the person of* the owner 
where he goes, and he may deal with them and dispose of them 
according to the law of his domicile, which, if he die intestate, 
4 — 65th III. 



50 First Nat. Bank, Mendota, v. Smith, etc. [Sept. T., 

Opinion of the Court. 

governs their disposal. The act of June 13, 1867, directs taxes 
to be assessed by the authorities of counties, towns, cities and 
districts upon the shares of these banks in the county or town 
where the bank is located, without regard to the residence of 
the owner or the situs of the shares, and in that respect I 
regard it as a violation of the constitution of the State. 

" The complainants show, and it is not denied, that their 
shareholders are scattered over the State, and such taxation 
upon them appears to me a clear infringement of the constitu- 
tional requisition that all assessments by the corporate authori- 
ties of cities, etc., shall be uniform in respect to persons and prop- 
erty within their limits. This compels the taxation of the 
stock owned by residents of the State in the county, city, town, 
or district Avhere they reside, for the purpose of collecting 
county, city, town, or district taxes, and a failure to do so 
destroys the rule of uniformity with respect to property within 
the limits of the body imposing the taxes, while neither the 
persons nor property are Mdthin the jurisdiction of the taxing 
power at the place of the bank's location. 

" If then this statute is void as to those who do not reside in 
the district where the bank is located, it must be as to those 
who do; because it would then be undeniable that every 
person would not be obliged to pay a tax in proportion to the 
value of his or her property, and the taxes for State purposes 
would not be levied with uniformity. And if the law be not 
valid as to shares of stock belonging to residents, the shares 
of non-residents can not be taxed, becau.se the provisions of 
section 41 of the act of 1864 inhibit any tax upon non-resi- 
dents that is not imposed upon residents of the State, and 
such a regulation would be in conflict with the federal con- 
stitution, which says: 'the citizens of each State shall be entitled 
to all the pl^ivileges and immunities of the citizens of the 
several States.' I can not avoid the conclusion that this law 
violates the imperative rule of the constitution." 

There are two vital points involved in the foregoing rea- 
soning and conclusion which challenge serious attention. Oue 



1872.] First Nat, Bank, Mendota, v. Smith, etc. 51 

Opinion of the Court 

is, in effect, that all shares in the stock of national banks in 
this State, though claiming and receiving the protection of 
our laws and of our State and municipal governments, will 
wholly escape State, county, town, or district taxation if 
owned by non-residents of the State, and will be beyond the 
reach of any statute the legislature can pass. Neither can 
they be taxed where the owner resides. 

They will thus escape taxation anywhere, although by the 
act of Congress under which these banks are created, there is 
a clear and manifest intention that stockholders should be 
subject to taxation in the State where the bank is located. 
The reasoning is, that they can not be taxed in this State 
because, b}' a mysterious and indissoluble tie, the situs of the 
shares is with the non-resident owners. They can not be 
taxed where the owners live, because, by the act of Congress, 
thev can be taxed only in the State where the bank is located. 

The other point of this decision is, that if an assessor in- 
cludes in his assessment certain property not legally subject 
to taxation, not only may the owner of such property enjoin 
the collection of the tax illegally imposed upon that property, 
but all other tax payers, though their taxes are thereby less- 
ened in amount, may avail themselves of his grievances and 
enjoin the collection of taxes assessed upon their property; 
and this upon the theory that the addition to the assessment 
roll of property not subject to taxation violates the constitu- 
tional requirement of equality and uniformity. We are unable 
to understand how this conclusion is reached. When prop- 
erty subject to taxation is wholly left out of the assessment, 
it might be contended with much plausibility that uniformity 
was not attained. But even in that case this court has held 
that the collection of the tax cannot be restrained by equity. 
Merritt v. Farris, 22 111. 511 ; Schofield et al. v. Watkins etal. 
ib. 66. 

And again, in Dunham et al. v. City of Chicago, 55 111. 357, 
where the omission by the assessors to assess property sub 
ject to taxation was set up as a defense to the application for 



52 FiKST Nat. Bank, Mendota, v. Smith, etc. [Sept. T., 

Opinion of the Court. 

judgment against delinquent lands, it was held by this court 
that such omission afforded no sufficient ground for declaring 
the taxes void. 

But whatever ground of complaint there might be on the 
part of owners of assessed property because other property 
liable to taxation had been omitted from the assessment, and 
thus increasing their burdens, we are entirely unable to com- 
prehend how tax payers can complain because property not 
liable to taxation had been included. The result to them is 
simply that their taxes are thereby lessened ; which is certainly 
a very novel reason for asking an injunction. 

The case in the United States Circuit Court to which we 
have been cited, was a bill brought by the bank to restrain 
the collection of city taxes from any of the shareholders, whether 
resident or non-resident in the city of Chicago. The shares of 
the residents were, even in the view of the court, properly 
taxable there. The shares of the non-residents were, in the view 
of the court, not within the city, but attached to the persons of 
their owners, at the domicile of the latter, and were therefore 
not taxable there. For aught that appeared there, all the 
property in the city subject to taxation was assessed. The 
addition to that assessment of property belonging to non- 
residents, and not within the city, according to the view of 
the court, may have been, if that view were correct, a wrong 
to the non-resident owners, but certainly was none to the resi- 
dent tax payers, and did not destroy either equality or 
uniformity of taxation as between them. 

We have commented at such length on this position of the 
federal court because the same position is taken by counsel 
in the case before us, on the authority of that decision, and 
the same relief is asked for the resident stockholders that 
was granted there. 

As is apparent in the extract i'rom the opinion already 
given, the decision rests upon two propositions : Fii'st, that a 
tax can not be assessed where there is no jurisdiction of either 
the person or the property. Second, that personal property 



1872.] First Nat. Bank, Mendota, v. Smith, etc. 53 
Opinion of the Court. 

has no situs of its own, but follows the person of its owner, 
and if this is not always true of tangible personal property, 
it is of incorporeal personal property like shares of bank 
otock. 

The correctness of the first proposition is not questioned. 
It is undoubtedly true that the legislature could not consti- 
tutionally authorize Cook county to levy a tax upon lands or 
other property having a fixed situs in La Salle county. 

The second proposition is correct as a general rule of the 
common law. It is one of obvious convenience in determin- 
ing what law shall govern in the distribution of estates of 
deceased persons. But while it is a rule of the common law, 
that is all that can be said of it. The fallacy of the reason- 
ing of the federal court referred to, and of the counsel for 
the appellant, seems to be in assuming that this rule of the 
common law can not be changed by statute. The legislature, 
by the act of 1867, certainly intended to change it in regard 
to bank shares; and to fix their situs, for all purposes of taxa- 
tion, in the county where the bank is situated. The language 
employed is broad enough to eifect the change, and it has 
been made, if the legislature had the constitutional power to 
make it. Where is the constitutional provision which pro- 
hibits the change? We have been referred to none; and in 
what provision lurks the prohibition we confess ourselves at 
a loss to conjecture. That the decision of the federal court 
assumes and is based upon the theory that the situs of the 
shares is inseparable, even by statute, from the person of the 
owner, is undeniable. Yet we are pointed to no provision of 
the constitution prohibiting Mdiat would seem to be an exer- 
cise of one of the plainest and simplest of legislative powers. 
That the legislature can change the rule of the common law 
in this respect, seems to us a proposition too plain for argu- 
ment; and if the power had not been practically denied by a 
court of such respectability we should deem it one so palpably 
clear as not to admit of controversy. 



54 First Nat. Bank, Mendota, v. Smith, etc. [Sept. T. 

Opinion of the Court. 

Story, in his Conflict of Laws, section 550, speaking of this 
question of situs, says : 

" The general doctrine is not controverted that although 
movables are for many purposes to be deemed to have no 
situs except that of the domicile of the owner, yet this being 
but a leyal fiction, it yields whenever it is necessary for the 
purposes of justice that the actual si^ws of the thing should 
be examined." 

The separation of the situs of personal property from the 
domicile of the owner for the purposes of taxation is familiar 
doctrine in the courts of this country, and has been sanctioned 
by this court in various cases. In Wilkey v. The City of PeJcin, 
19 111. 160, it was held that a resident of that city could not, 
under the charter, be taxed on personal property not having 
its actual situs within the city. The situs of the property was 
held, under the charter, not to attach to the person of the 
owner. In Mills v. lliornton, 26 111. 300, a like severance of 
the situs from the person, for the purposes of taxation, was 
again recognized. In the City of Dunleith v. Reynolds, 53 
111. 45, the court held certain personal property within the 
city subject to taxation, though the owners resided elsewhere. 
These, it is true, were eases of tangible property. But in the 
Board of Supervisors v. Davenport, 40 111. 198, the same prin- 
ciple was applied to property not tangible. It Avas there 
held that money belonging to a resident of New York, and 
sent to an agent in Tazewell county to be loaned, was taxa- 
ble by the county. The property was a mere chose in action, 
but its situs was, by the terms of the revenue law, severed 
from the owner and attached to the agent in this State who 
loaned the money. It might be said in reference to the latter 
case that the possession of the agent was thatof the principal. 
If this be conceded, it may also be said that the bank files 
this bill as trustee of the stockholders; and as such possesses 
the lawful control over the rights and interests of the cestuis 
que trust, much greater than that of a mere agent for the loan 
of money. 



1872.] FiKST Nat. Bank, Mendota, v. Smith, etc. 55 

Opinion of the Court. 

Shares in joint stock companies are not, however, strictly 
speaking, chattels, and it has been considered that they bear a 
closer resemblance to choses in action, or, in other words, they 
are merely evidence of property. They are, it is held, mere 
demands for dividends as they become due, and differ from 
movable property, which is capable of possession and manual 
apprehension. "If," says C. J. Shaw, "a share in a bank is 
not a chose in action, it is in the nature of a chose in action, and, 
what is more to the purpose, it is personal property." Ang. & 
Ames on Corp. 9th Ed. sec. 560 ; Hutchins v. State Bank, 12 
Met. 421. 

" Certificates of stock," says Comstock, J. in Mechanic's 
Bank v. N. York R. R. Co. 3 Kern. 627, " are not securities 
for money in any sense, much less are they negotiable securi- 
ties. They are simply the muniments and evidence of the 
holder's title to a given share in the property and franchises 
of the corporation of which he is a member." 

Under this view of the law, it would seem to be eminently 
proper for the legislature to fix the situs of property so anom- 
alous in nature, for the purposes of taxation. The question^ 
however, is not whether the act of 1867, under which these 
taxes were levied, was just or reasonable, but simply whether 
it was within the limits of legislative power. If it was not, 
then there is no power in our legislature to change any 
artificial rule of the common law, and many of the acts within 
our statute books are void for the same reason. 

But in our opinion the act of 1867 was not only constitu- 
tional, but was also a very proper and even necessary exercise 
of legislative power. It prescribes no unreasonable rule. It 
places the situs of bank shares where, from the very nature of 
the property, it ought to be placed for the purposes of taxa- 
tion. The act of Congress itself contemplates a severance of 
the situs of such shares from the person of their owner, by 
providing that they should not be taxed except in the State 
where the bank is established. But apart from this, it is 
really much more reasonable to fix the situs of shares at the 



56 FiEST Nat. Bank, Mendota, v. Smith, etc. [Sept T., 

Opinion of the Court. 

place where the bank is located, and where it must continue 
to do its business or M'ind up its affairs, than to separate by 
legislation tangible personal pi'operty from the person of its 
owner. The latter may be in one county to-day, and in another 
to-morrow. Its actual situs is liable to constant change, and 
the title may be transferred by the owner wherever he may 
be. But not so with bank shares. The banking corporation 
has a fixed locality, where it must transact its business, and 
there wind up its affairs when it ceases to exist. It is the 
trustee of the stockholders, who must come to its counter for 
their annual dividends and their share of assets on final 
liquidation. Its debts are payable at its counter, and credits 
receivable there. No transfer of stock can be completed unless 
shown upon the books of the bank. A list of the names and 
residence of all the stockholders must be there kept. The 
property, in its own nature, possesses much more of the 
immobility of real estate than any other personal property 
which we can now call to mind. The legislature, then, did no 
violence to the nature of this property when it fixed the situs 
of the shares at the locality of the bank. 

We have seen that the exercise of the power by the legis- 
lature was both proper and legitimate. We have shown 
why it was proper and legitimate. It was necessary, 
because if this act had not been passed much of the bank 
stock in the State would have soon escaped taxation by modes 
so obvious as to need no specification. As it is, this is impos- 
sible. The assessor of each county knows every bank in the 
county, and has but to go to the books to ascertain the owner- 
ship of the sliares. The act, instead of defeating uniformity 
and equality of taxation, which is the theory upon M'hich its 
invalidity is asserted, does, in our judgment, tend to secure 
these results more effectually than any other method that 
could have been adopted . 

This question has been before tlie highest courts of New 
York and New Jersey, and they have decided as we do. 



1872.] First Nat. Bank, Mendota, v. Smith, etc. 57 
Opinion of the Court. 

National Bank v. Cook, 3 Vroom, 347 ; The People v. Commis- 
sioners of Taxes, 35 New York, 423. 

We know of no authority that can be cited in support of 
the ruling of the circuit court of the United States for the 
Northern District of Illinois, to which we have already suffi- 
ciently adverted. The case just cited from 35th New York, 
in which this point was expressly ruled, was afterwards 
carried to the Supreme Court of the United States ; this point 
was not deemed of sufficient importance to be raised before 
that court; and the judgment of the court of appeals of New 
York was affirmed there without reference by the court to 
the question. 4 Wallace, 244. 

We can not regard the attempt of the national banks to shield 
their stockholders from all State taxation as at all meritorious. 
They oifer no grounds for the alleged exemption which we 
can regard as even plausible. 

Although their franchises are conferred by act of Congress, 
still, all their business, so far as conducted with reference to 
profit, is done under our State laws, the same as corporations 
created by the laws of this State. It is by the laws of the 
State that their business transactions are governed, and by the 
same laws that their property is protected. So that they are 
under the same duty to contribute to the support of the State 
and municipal governments as any natural person or State 
corporation may be. Unless exempted by some plain rule of 
law, they should not ask a court of equity to relieve their 
stockholders from that duty. 

Decree affirmed. 



58 Walsh v. The People. [Sept. T., 

Opinion of the Court. 



James Walsh 

V. 

The People of the State of Illinois. 

1. CriminaIi law — bribery. At common law, bribery is a grave and 
serious offense against public justice; and the attempt or offer to bribe is 
likewise criminal, as tending to corrupt official integrity, and is indictable. 

2. Same — misdemeanor defined. Misdemeanors comprise all offenses 
lower than felonies which may be the subject of indictment. They are 
of two classes, such as are mala in se, or punishable at common law, and 
such as are mala prohibita, or penal by statute. 

3. Same — misdemeanors at common law. Whatever, under the first class, 
mischievously affects the person or property of another, or openly ouU 
rages decency, or disturbs public order, or is injurious to the public, or is 
a breach of official duty, when done corruptly, is the subject of indict- 
ment. 

4. Same — offer to receive a bribe. In this State, it is an indictable mis- 
demeanor to propose to receive a bribe by an alderman of a city council, 
or by any puljlic officer. It must be regarded as an incentive to offer one, 
and a solicitation to commit an offense. Inciting another to the commis- 
sion of any indictable offense, though without success, is a misdemeanor. 

5. Same — character of accused. Where the defendant M'as convicted of 
the offense of offering to receive a bribe, upon the unsupported testimony 
of a single witness, who was impeached, and was shown to have been 
actuated by great personal hostility to the accused, it was held, that in 
such a case, involving so much doubt, the good character of the accused 
was entitled to great weight, and that the conviction could not be sus- 
tained. 

Wkit of Error to the Criminal Court of Cook county ; 
the Hon. William W. Farwell, Judge, presiding. 

Mr. John VanArman, and Mr. Emery A. Storrs, for the 
plaintiff in error. 

Mr. Charles H. Reed, State's Attorney, for the people. 

Mr. Justice Thornton delivered the opinion of the Court : 

The defendant below was an alderman of the common coun- 
cil of the city of Chicago. As such, he was indicted for a 



1872.] Walsh v. The People. 5^ 

Opinion of the Court. 

proposal, made by himself, to receive a bribe, to influence hi& 
action in the discharge of his duties. 

The indictment is, in form, an indictment at common law; 
and it is conceded that the statute has not created such an 
offense against an alderman. Our criminal code has made it 
an offense to propose, or agree to receive, a bribe, on the part 
of certain officers; but an alderman is not, either in terms or 
by construction, included amongst them. Rev. Stat. 1845, p, 
167, sec. 87. 

It is contended that the act charged does not fall within 
any of the common law definitions of bribery; that no prece- 
dent can be found for such an offense, and that, as proposi- 
tions to receive bribes have probably often been made, and as 
no case can be found in which they were regarded as criminal, 
the conclusion must follow that the offense charged is no 
offense. 

The weakness of the conclusion is in the assumption of a 
premise, which may or may not be true. This particular 
phase of depravity may never before have been exhibited; 
and if it had been, a change might be so suddenly made, by 
an acceptance of the offer and a concurrence of the parties, 
as to constitute the offense of bribery, which consists in the 
receiving any undue reward to incline the party to act con- 
trary to the known rules of honesty and integrity. 

But the character of a particular offense can not fairly be 
determined from the fact that an offense exactly analogous 
has not been described in the books. We must test the crim- 
inality of the act by known principles of law. 

At common law, bribery is a grave and serious offense 
against public justice; and the attempt or offer to bribe is 
likewise criminal. 

A promise of money to a corporator, to vote for a mayor 
of a corporation, was punishable at common law. Hex v. 
Plymjpton, 2 Lord Raym. 1377. 

The attempt to bribe a privy counsellor, to procure an 
office, was an offense at common law. Rex v. Vaughan, 4 



60 Walsh v. The People. [Sept. T., 

Opinion of the Court. 

Burr. 2494. In that case, Lord Mansfield said : "Wherever 
it is a crime to take, it is a crime to give. They are reciprocal. 
And in many cases, especially in bribery at elections to par- 
liament, the attempt is a crime. It is complete on Itis side 
who offers it." 

Why is the mere unsuccessful attempt to bribe criminal? 
The officer refuses to take the offered reward, and his integ- 
rity is untouched — his conduct uninfluenced by it. The rea- 
son for the law is plain. The offer is a sore temptation to 
the weak or the depraved. It tends to corrupt, and, as the 
law abhors the least tendency to corruption, it punishes the 
act which is calculated to debase, and which may affect pre- 
judicially the morals of the community. 

The attempt to bribe is, then, at common law a misde- 
meanor; and the person making the offer is liable to indict- 
ment and punishment. 

What are misdemeanors at common law? Wharton, in his 
work on criminal law, p. 74, says: "Misdemeanors comprise 
all offenses, lower than felonies, which may be the subject of 
indictment. They are divided into two classes: first, such as 
SiXe maJa in sc, OY penal at common law; and secondly, such 
as are mala prohibiia, or penal by statute. Whatever, under 
the first class, mischievously affects the person or property of 
another, or openly outrages decency, or disturbs public order, 
or is injurious to public morals, or is a breach of official duty, 
when done corruptly, is the subject of indictment." 

In the case of the ^J7>e King v. Higgins, 2 East, 5, the de- 
fendant was indicted for soliciting and inciting a servant to 
steal his nuister's chattels. There was no proof of any overt 
act towards carrying the intent into execution, and it Avaa 
argued, in behalf of the prisoner, tliat the solicitation was a 
mere fruitless, ineffectiuil temptation — a mere wish or desire 

It was held, by all the judges, that the soliciting was a mis* 
demeanor, though the indictment contained no charge that the 
servant stole tlie goods, nor that any other act was done except 
the soliciting. 



1872. ] Walsh v. The Pp:ople. 61 

Opinion of the Court. 

Separate opinions were delivered by all the judges. 

Lord Kenyon said the solicitation was an act, and it would 
be a slander upon the law to suppose that such an oifense was 
not indictable. 

Gross, J. said an attempt to commit a misdemeanor was, in 
itself, a misdemeanor. The gist of the oifense is the incite- 
ment. 

Lawrence, J. said : "All offenses of a public nature, that 
is, all such acts or attempts as tend to the prejudice of the 
community, are indictable;" and that the mere soliciting the 
servant to steal was an attempt or endeavor to commit a 
crime. 

Le Blanc, J. said that the inciting of another, by whatever 
means it is attempted, is an act done; and if the act is done 
with a criminal intent, it is punishable by indictment. 

An attempt to commit an offense, or to solicit its commis- 
sion, is at common law punishable by indictment. 1 Haw. 
P. C. 55; Whar. Cr. Law, 78 and 872; 1 Russ. on Cr. 49. 

While we are not disposed to concur with Wharton, to the 
full extent, in the language quoted, that every act which 
might be supposed, according to the stern ethics of some per- 
sons, to be injurious to the public morals, to be a misdemeanor, 
yet we are of opinion that it is a misdemeanor to propose to 
receive a bribe. It must be regarded as an inciting to offer 
one, and a solicitation to commit an offense. This, at com- 
mon law, is a misdemeanor. Inciting another to the com- 
mission of any indictable offense, though without success, is 
a misdemeanor. 3 Chitty Cr. Law, 994; 1 Russ. on Cr. 49, 
Cartwright's case; Russ. and R. C. C. 107, note b; Rex v. 
Higgins, 2 East, supra. 

As we have seen, the mere offer to bribe, though it may be 
rejected, is an offense; and the party who makes the offer is 
amenable to indictment and punishment. The offer amounts 
to no more than a proposal to give a bribe; it is but a soli- 
citation to a person to take one. The distinction between an 
offer to bribe and a proposal to receive one, is exceedingly 



62 Walsh v. The People. [Sept. T., 

Opiuion of the Court. 

nice. Tlie difference is wholly ideal. If one man attempt to 
bribe an officer, and influence him, to his own degradation 
and to the detriment of the public, and fail in his purpose, is 
he more guilty than the officer, who is willing to make sale 
of his integritv, debase himself, and who solicits to be pur- 
chased, to induce a discharge of his duties? The prejudicial 
efi'ects upon society are, at least, as great in the one case as in 
the other; the tendency to corruption is as potent; and Mhen 
the officer makes the proposal, he is not only degraded, but 
the public service suflPers thereby. 

According to the well established principles of the common 
law, the pro})osal to receive the bribe was an act which tended 
to the prejudice of the community; greatly outraged public 
decency; was in the highest degree injurious to the public 
morals ; was a gross breach of official duty, and must there- 
fore be regarded as a misdemeanor, for which the party is 
liable to indictment. 

It is an offense more serious and corrupting in its tenden- 
cies than an ineffectual attempt to bribe. In the one case, the 
officer spurns the temptation, and maintains his purity and 
integrity; in the other, he manifests a depravity and dishon- 
esty existing in himself, which, when developed by the pro- 
posal to take a bribe, if done with a corrupt intent, should 
be punished; and it would be a slander upon the laM' to sup- 
pose that such conduct can not be checked, by appropriate 
punishment. 

In iiohling that the act charged is indictable, we are not 
dril'ting into judicial legislation, but are merely applying old 
and well settled {)rinciples to a new state of facts. 

We arc coinpelled, however, to reverse, upon the evidence, 
and shall not tliercrorc further allude to the law of the case, 
or to the errors assigned upon instructions given and refused. 

The defendant was found guilty, upon the unsupported 
testimony of one Goggin; and it appears that there were two 
persons of the name of Walsh referred to by Goggin, in his 
numerous conversations* one was a member of the board of 



1872.] Walsh v. The People. 63 

Opinion of the Court. 

education, and the other, the present defendant, was a mem- 
ber of the common council of Chicago. 

After the date, as fixed by Goggin, of the proposal, on the 
part of the defendant, to receive a bribe, Goggin said to one 
Young that he had agreed to give |2000 to Walsh, but that 
he now demanded ^4000. Young replied there are two per- 
sons of that name; ''which one is it?" Goggin said: "It is 
Walsh of the board of education ; the alderman is a gentle- 
man." 

Goggin complained to one Miller that the defendant had 
prevented him from selling his lot to the city, and said: "I 
will get a chance at him some of these days." 

He also said to Donovan: "Walsh is my bitterest enemy, 
and I will do everything in my power to send him up." 

To Cullerton : " I have nothing against any alderman but 

Jim Walsh; and, by , I will fix him, if swearing will 

do it." 

To Gustave Busse : " All I want is Walsh — that d d 

scoundrel; I want to go for him. If I can bring him to the 
penitentiary, I am going to do it." 

To Fred. Busse : " There is only one man I want to go 
for — Walsh. If I can get on the stand, if I don't fix him, 
and get him in the penitentiary!" 

Upon cross-examination, Goggin denied all hostility, and 
any expressions of hostility, toward the defendant; and he 
also denied the conversation testified to by Young. 

We might make further reference to the evidence, but 
enough has been cited to show a deep feeling of hostility, on 
the part of the witness, toward the defendant, and a deter- 
mination to have him convicted, if false swearing could do 
it. AYe must credit the numerous witnesses who contradict 
the prosecutor. He is therefore impeached, and, to a great 
extent, rendered unworthy of belief. He can not have sworn 
to the truth, if we believe the impeaching witness ; or if upon 
the trial he testified truly, then he made wilfully false state- 
ments, to divers persons, before the trial. 



64 Walsh v. The Pkople. [Sept. T., 



Dissentiug opinions of Mr. Justice Breese aud Mr. Justice Scott. 

Not only is there a reasonable doubt created as to the guilt 
of the accused, but the mind is forced to the conclusion that 
the prosecution was the result of personal animosity, and was 
carried on for the gratification of malicious feeling. There 
is no safety to the good, or virtuous, or innocent, if convic- 
tions can be had upon the testimony presented in this record. 

In a case involved in so much doubt, the good character 
of the accused, abundantly proved, was entitled to great 
weight. A large number of witnesses testified that his gen- 
eral reputation for honesty and integrity was good. 

Under all the circumstances, it is almost incredible that a 
verdict of guilty was obtained. 

The judgment is reversed aud the cause i-emanded. 

Judgment reversed. 

Mr. Justice Breese: I concur in reversing the judgment, 
but do not concur in all the view.s presented in this opinion. 

Mr. Justice Scott: I concur in reversing the judgment 
in this case, but dissent from the views expressed in the opin- 
ion of the majority of the court. 

There is no statute in this State which defines the offense 
for which the plaintiff in error was indicted and convicted. 
It is a common law indictment, and it was sought to charge 
him with having, in his official capacity, offered to receive a 
bribe. 

The indictment alleges that the plaintiff in error, "on the 
1st day of December, 1871, then a member of the common 
council of the city of Chicago, to- wit, an alderman, did then and 
there unlawfully, wickedly, corruptly, and contrary to his 
duty as such alderman, propose to receive, as a bribe, of aud 
from William Goggin, a large sum of money, to-wit, the sum 
of $4000, to induce him, the said Walsh, as such alderman, 
to use liis influence with favor, as such alderman, to induce 
and secure the purchase by said common council, of said 
William Goggin, for said city of Chicago, for the place 
whereon to erect a public school house/' certain real estate, it 



1872.] Walsh v. The People. 65 

Dissenting opinion of Mr. Justice Scott. 

being the duty of said common council to purchase real estate 
for said city whereon to erect school houses, contrary to law, 
etc. 

The only question of any importance presented by the rec- 
ord is, whether there is any such offense known to and indict- 
able at common law as an offer by any officer to receive a bribe 
for his influence, in his official capacity, to induce his favor- 
able action, for corrupt and improper purposes. 

Bribery, at common law, is defined to be "the receiving or 
offering any undue reward by or to any person whatever whose 
ordinary profession or business relates to the administration 
of public justice, in order to influence his behavior in office, 
and incline him to act contrary to the known rules of honesty 
and integrity." But in a more extended and enlarged sense, 
it may be committed by any person in an official situation 
who shall corruptly use the power and interest of his place 
for rewards or promises, and by any person who shall give or 
offer or take a reward for offices of a public nature. 3 Green- 
leaf, sec. 71; 1 Russell on Crimes, 154; 4 Bl. Com. 139. 

In England the offense of taking bribes was punished in 
inferior officers with fine and imprisonment, and in those who 
offer a bribe, though not taken, the same. 4 Bl. Com. 140. 

It is said that the law abhors the least tendency to corrup- 
tion, and upon the principle that an attempt to commit a mis- 
demeanor is itself a misdemeanor. Attempts to bribe public 
officers, though unsuccessful, have been held to be criminal. 
The object was to preserve purity in official conduct, and in 
the administration of justice; and the tendency of the bribe 
being to corrupt official conduct, and pervert justice, he who 
received and he who offered the bribe were alike punished. 

In no definition of bribery that I have seen does it include 
a mere offer on the part of an officer to be himself bribed. 
No reference has been made to any elementary work, or to any 
adjudged case that gives such a definition, and I am persuaded 
that no such authority can be found. 
5 — 65th III. 



66 Walsh v. The People. [Sept. T., 

Dissenting opinion of Mr. Justice Scott. 

Bribery is punished on the ground that it tends to produce 
oflficial misconduct or to corrupt the administration of justice. 
It is difficult to understand how a mere offer on the part of 
an officer to receive a bribe could come within the reason of 
the rule. A party who would express a willingness to receive 
a bribe for his official influence is necessarily corrupt, but 
no extrinsic motive is brought to bear on him by a mere 
offer on his part not accepted other than his own evil incli- 
nations which previously existed, and hence an offer to re- 
ceive a bribe does not come within any definition of bribery. 

There is no such offense defined by our statute or the com- 
mon law, as an offer on the part of an alderman to receive a 
bribe, as alleged, and the motion to quash the indictment 
ought to have been allowed, and because it was not sustained 
I am of opinion that the judgment ought to be revei'sed. 

I am unable to comprehend how a party may be indicted 
for an alleged crime wholly unknown to the law, and on the 
trial be convicted of immoral conduct, even if it be admitted 
that such conduct tends to produce official misconduct, and 
punished as bribery was punished at common law. It would 
certainly constitute an anomalous proceeding in criminal ju- 
risprudence. 

Nearly, if not all of the misdemeanors defined by common 
law writers, which it has been thought necessary to be pun- 
ished, have been defined in our criminal code, and provision 
made for the summary punishment before justices of the 
peace, and by indictment, and in my judgment it is against the 
policy of our laws to permit indictments for such offenses not 
defined by statute.''^ 

*BussE I). The People. 

PerCiTiirAM: This indictment Is for the same offense and In all rcspecta like 
the one in WaUh v. The People. 

The views of the minority of the court, on all the questions raised, have been 
fully stilted in the opinion in that case, to which reference is made. 

The evidence in the record has been carefully considered, and it is the opinion 
of the court, nil the members concurrinjr, that the verdict in this case i.« not sup- 
ported by the evidence. 

The judnmunt is reversed and the cause remanded. 

Judgment reversed. 



1872.] Canisius et al. v. Merrili^ et at 67 

Opinion of the Court. 



Theodoee Canisius et al. 



Ahiea Merrill et al. 

1. Mechanic's liex — construction of the statute. The mechanic's lien 
statute is in derogation of common right, and must receive a strict con- 
struction. The lien given is only for labor performed or materials fur- 
nished in erecting or repairing any building or the appurtenances thereof; 
it does not extend to other improvements made upon a farm, such as 
fencing. 

2. Interest — of the rate allowed. Ten per cent interest is only allow- 
able by virtue of an express contract to that effect between parties. 

Writ of Error to the Circuit Court of Kane county ; the 
Hon. SiLVANUS Wilcox, Judge, presiding. 

Mr. Charles J. Metzner, for the plaintiffs in error. 

Messrs. Parks & Aknis, for the defendants in error. 

Mr. Justice Sheldon delivered the opinion of the Court : 

This was a petition to enforce a mechanic's lien for work 
and materials furnished by the petitioners for a house and 
improvements upon a certain farm, comprising a fractional 
quarter section of land owned by Emma Canisius, and occu- 
pied by her, together with her husband, the other defendant. 

The petition sets forth that, between the 19th day of April 
and the 29th day of June, 1870, lumber to the amount of 
$32.49 was furnished for the erection of buildings and im- 
provements on the premises ; that on the 20th day of Septem- 
ber, 1870, a contract in writing was entered into between the 
parties, under which the petitioners were to build a house 
upon the premises and furnish the lumber and materials for 
the same; that the work was finished on or about the 20th of 
January, 1871, and that $430 remains due and unpaid under 
that contract; that in the completing of the work $80 of extra 



68 Canisius et al. v. Merrill et al. [Sept. T., 

Opinion of the Court. 

work was done ; that on or about November 5th, 1870, a eon- 
tract was made with the said Emma under which the petition- 
ers furnished lumber, principally fencing and fence posts, to 
the amount of $80, to be used upon said farm in the improve- 
ment of it. 

The petition alleges that the petitioners are entitled to inter- 
est upon the bills from the time they became due, at the rate 
of ten per cent after thirty days, and prays that an account 
may be taken of the amount due, with interest on the same 
since due. 

A decree was entered by default against the defendants; 
finding the amount due to be $671.15, and ordering a sale of 
the premises to satisfy the same. 

It is assigned for error in the decree that it admitted a lien 
for materials furnished for making improvements on a farm, 
and that it allowed ten per cent interest on the amounts due. 

The statute gives the lien for labor or materials furnished 
for erecting or repairing any "building, or the appurtenances 
of any building," on any piece of land or town lot. 

The statute is in derogation of common right, and is to re- 
ceive a strict construction. The lien is only allowed for what 
is furnished for erecting or repairing a " building, or the ap- 
purtenances of any building," not for making other improve- 
ments on a farm. 

One claim in the petition is for lumber furnished for the 
erection of buildings and improvements ; another one is for 
lumber, principally fencing and fence posts, to be used upon 
the farm in the improvement of it. The decree finds the in- 
debtedness to be for lumber and materials furnished for the 
construction of the house and improvements on the premises. 
It can not be intended that improvements on a farm mean the 
erecting or repairing of a building, or the appurtenances of a 
building, upon it. It should appear by the record that the 
case is clearly one within the statute. 

Ten per cent interest is only allowable in virtue of an ex- 
press contract to that effect between parties. The allegation 



1872.] Manufacturers' Nat. Bank v. Barnes et al. 69 

Syllabus. 

in the petition that the petitioners are entitled to interest on 
their bills from the time they became due, at ten per cent, after 
thirty days, appears to be a mere conclusion, without the 
statement of any contract from which it arises. 

The principal amount of $430 was due under a contract in 
writing, which is silent about interest. This rate of interest 
should not have been allowed by the decree. 

In order to make up the amount found due by the decree, 
the petitioners must have been allowed their claim in full for 
what they furnished for making improvements on the prem- 
ises, as well as for erecting the building and its appurtenances, 
as also their claim of ten per cent interest. 

The decree must be reversed and the cause remanded. 

Decree reversed. 



Manufacturers' National Bank 

V. 

Alfred S. Barnes et al. 

1. Agency — right to presume authority. Where the plaintiff, in an 
action against a bank to recover deposits, expecting to be absent for 
a short time, gave his clerk and book-keeper a power of attorney to 
draw checks on the defendant against deposits for fifteen days only 
and deposited the power of attorney with defendant, and after his re- 
turn, resumed his business of drawing his own checks ; and it appeared 
that after the expiration of the power of attorney, the clerk continued to 
draw checks without the knowledge of the plaintiff, a part of which he 
applied to the business of the plaintiff, and appropriated the balance to 
his own use: Held, that the defendant was liable to the plaintiff for the 
moneys paid out on the checks drawn by the clerk after his agency 
ceased, and which he appropriated to his own use. 

2. And when the plaintiffs bank-book was written up, showing the 
payment of such checks, and the checks delivered to the clerk with the 



70 Manufacturers' Nat, Bank v. Barnes et al. [Sept. T., 

Opinion of the Court. 

bank-book, but the plaintiff had not examined the same, and had no 
knowledge of the facts, it was held, that the bank had no right to presume 
that the clerk had a general authority to draw checks thereafter, from such 
fact. 



Appeal from the Superior Court of Cook county ; the 
Hon. Joseph E. Gary, Judge, presiding. 

Messrs. Beckwith, Ayer & Kales, for the appellant. 

Messrs. Lyman & Jackson, for the appellees. 

Mr. Chief Justice Lawrence delivered the opinion of the 
Court : 

This action was brought by Barnes & Co. to recover from 
the bank a balance claimed to be due on deposits made by the 
plaintiffs with the bank. The deposits were admitted, but 
the defense set up was payment to the plaintiffs' clerk, under 
the following circumstances: 

It appears that on the 22d of June, 1870, Barnes, the resi- 
dent partner at Chicago, and the only person authorized to 
draw checks, being obliged to leave the city for a short time, 
gave to a clerk, employed by him as book-keeper and cashier, 
a power of attorney authorizing him to draw checks on the 
bank for fifteen days. This power of attorney was lodged 
with the bank, a conversation having been previously had 
with the assistant cashier in regard to it. 

On the 7th of July, liarnes returned, and resumed the charge 
of his business. Nevertheless, the clerk continued to draw 
occasional clundcs. signing tiie name of Barnes, with the initial 
letter of his own name, to indicate his agency. He continued 
to check until tlio following January, the whole amount 
drawn being ^4547.94. Of tiiis sum, the clerk had used 
$1509.39 in paying debts of the firm, but without the knowl- 
edge of Barnes. During this interval, the bank-book of the 
firm had been several times written up, and the paid checks 
returned ; but as this had been attended to by the same clerk, 



1872.] Manufacturers' Nat. Bank v. Barnes et al. 71 

Opinion of the Court. 

acting in his capacity of book-keeper and cashier, the fact 
that he had been drawing checks after the power of attorney 
had expired was not discovered by the plaintiffs until January. 
Judgment was obtained in the Superior Court for the amount 
of the checks drawn by the clerk, less the sum applied by 
him to the debts of the firm, for Avhich the plaintiffs gave the 
bank credit. 

The case was tried by the court without a jury, and it is 
insisted the court erred in rendering judgment for any greater 
sum than the amount checked out by the clerk before the 
bank-book, or pass-book, of the plaintiffs was written up the 
first time, when all the checks were returned to the plaintiffs. 
It is claimed that, from that date at least, the bank had the 
right to presume that the clerk had authority to draw checks. 

There is, at first blush, a certain plausibility in this view, 
but it will not bear examination. The same question arose 
in the case of Weiser v. Denison, 10 JST. Y. 68. There, as here, 
a clerk had drawn checks in the name of his employer, and 
the pass-book had been several times written up and the 
checks returned before discovery of the fraud. The court 
held that the balancing of the pass-book and the return of the 
checks are for the protection of the depositor, and not for that 
of the bank, and the failure of the depositor to examine the 
checks is not such negligence on his part as to exonerate the 
bank from liability for the continued payment of checks im- 
properly drawn. We do not agree with counsel for appellant 
in regarding the present case as stronger for the bank than 
that. In the case before us, the checks drawn by the clerk 
showed upon their face that they were drawn by him, and the 
bank knew, by a document in its own possession, and which 
had been made the subject of a special conversation with one 
of its officers, that the clerk had authority to draw checks only 
for fifteen days from the 22d of June. The facts that the 
plaintiff had been thus careful to give the clerk express writ- 
ten authority, and to limit it to fifteen days, and to lodge this 



72 Board of Trade, ktc. v. Buckingham et al. [Sept.T., 

Syllabus. 

authority with the bank in pursuance of a previous arrange- 
ment, were sufficient to show the bank that the plaintiff had 
no intention of giving to the clerk a general authority to 
draw. The bank was guilty of great negligence in paying 
checks of the clerk drawn after that period, and can not be 
excused merely because the plaintiff failed to examine the 
returned checks, which he had a right to presume had been 
drawn by himself alone. 

We consider the reasoning of the New York court of ap- 
peals, in the case cited, very satisfactory, and adopt its de- 
cision as the better rule. 



The judgment is affirmed. 



Judgment affirmed. 



The Board of Trade of the City of Chicago 

V. 

J. Buckingham et al. 

Warehouseman's lien — Iww lost. After the great fire in Chicago, on 
the 8th and 9th days of October, 1871, which destroyed and damaged much 
of the grain stored in tliat city, and left the balance exposed to both fire 
and weather, the board of trade, acting in behalf of unknown owners and 
parties interested, and with the assent of the several warehousemen, took 
possession of the grain unconsumed, preserved and sold the same for the 
benefit of the owners. Previous to the sale, the warehousemen agreed, in 
writing, with the board of trade, that the latter might sell, the former to 
receive two cents per bushel as accrued storage thereon. After the sale 
they claimed a lien on the fund for charges for storage over and above the 
sum stipulated : Held, that, under the circumstances, they had lost their 
lien for storage, except for two cents a bushel ; and that the expense in- 
curred in preserving the grain was a proper charge to be deducted from 
the fund. 



1872.] Board of Trade, etc. v. Buckingham et al. 73 

Opinion of the Court. 
Appeal from the Circuit Court of Cook county. 

Messrs. Hitchcock, Dupee & Evaets, for the appellants 
Messrs. McCagg, Fuller & Culver, for the appellees. 

Mr. Justice Walker delivered the opinion of the Court : 

This was a bill in chancery, filed by appellants, in the cir- 
cuit court of Cook county, against appellees. 

It appears that, previous to the 8th and 9th days of Octo- 
ber, 1871, there was stored in the elevators. Galena, Hiram 
Wheeler, Munger and Armour, Nation and Central A, more 
than a million bushels of grain. By the fire of those dates 
a large portion of this grain was destroyed or greatly dam- 
aged. After the progress of the fire ^had been arrested, the 
unconsumed grain in these warehouses still continued to burn, 
and it was exposed to both fire and weather. The board of 
trade of the city of Chicago, acting on behalf of the unknown 
owners and parties interested in the grain, with the assent of 
the owners of the elevators, took possession of the grain. 
They employed labor for its preservation, and about the 30th 
day of the same month sold it at auction, when between $60,- 
000 and $70,000 was realized from its sale. 

Previous to the sale, the warehouse owners stipulated and 
agreed with the board of trade, that they might proceed to sell 
the grain, the warehousemen to receive two cents per bushel 
as accrued storage thereon. The grain was sold subject to 
this charge, which was paid by the purchaser to the ware- 
housemen. 

On the 20th of the following November, the board of trade 
filed their bill against all unknown persons having any inter- 
est in the proceeds of the sale, praying that the sale be ap- 
proved and the proceeds distributed. Publication was made 
against the defendants. A decree was subsequently rendered 
in accordance with the prayer of the bill, and the matter was 



74 Board of Trade, etc, v. Buckingham et al [Sept. T., 

Opinion of the Court, 

referred to the master to take proofs and report who were en- 
titled to participate in the distribution of the fund, and the 
proportionate share of each claimant. 

The owners of the warehouses thereupon filed their petition, 
alleging that they were Avarehousemen, and as such had a Hen 
for their charges for the storage of the grain. 

The holders of warehouse receipts for this grain also 
filed their claims before the master, who reported that they 
were entitled to the fund ; but the warehousemen excepted to 
the report, and on a hearing on the exceptions they were sus- 
tained and the case referred back to the master. He thereupon 
reported that the several warehousemen had claims for stor- 
age, amounting in the aggregate to $25,400.27, and also re- 
ported the amount each holder of warehouse receipts was en- 
titled to receive of the balance of the fund. The report of 
the master was approved, and a decree rendered requiring the 
receiver to pay to each claimant reported to be entitled to par- 
ticipate in the fund, the amount he was reported as entitled to 
receive. From this decree the board of trade have appealed, 
and ask a reversal of the decree. 

This record presents the question whether appellees, by their 
acts and agreement, parted with their possession of this grain 
in such a manner as to lose their lien for storage thereon. It 
is conceded that, as a general rule, a person holding such a 
lien, loses it by voluntarily parting with the property on which 
the lien exists. But it is contended that in this case there was 
not, by the warehousemen, an abandonment of possession to 
the extent that the lien was released; that the board of trade 
took charge of the grain for the purpose of preserving as 
much as could be done, for the benefit of all persons in inter- 
est; and that it was not intended to release the lien. On the 
other hand, it is urged that, from the entire transaction, it can 
not be inferred that there was an understanding that the lieu 
was to be preserved. 

The board of trade, without claim, voluntarily took possession 
of the grain, with the assent of the warehousemen, and for 



1872.J Board of Trade, etc. v. Buckingham et al. 75 

Opinion of the Court. 

tlie .sole purpose of saving all that could be, and without their 
intervention it is apparent that it would all have been lost, 
and the warehousemen must have so regarded it when they 
consented. Had it not been for the board of trade none of 
the grain would probably have been saved, and there would 
liave been notliing for the warehousemen to claim. 

It appears from the evidence that the warehousemen, in 
their written agreements, expressly reserved a lien of two 
cents per bushel on all grain that should be removed. But 
they fail to reserve any other or further lien. Nor is there 
any evidence that, during all the time the board of trade 
had possession, or at the time the stipulations were given, or 
prior to or at the sale, appellees said anything from which it 
can be inferred that they claimed any other lien than the two 
cents a bushel for the grain that should be removed. Had 
they intended to insist on a further lien, we must believe that 
they would have notified the board of trade of their intention 
to enforce it, when they entered into the stipulation. They 
were careful to insist upon the two cents a bushel on the grain 
that should be removed. And, as rational business men, we 
must suppose that, had they intended to insist upon a further 
lien, they would have attempted to preserve it by stipulation, 
or at least given notice of their claim. It is incomprehensi- 
ble that they would insist upon the two cents per bushel, and 
not even allude to any other claim of a lien, if they intended 
to rely upon it after the sale. 

It is a rule of interpretation, that the expression of one 
thing is the exclusion of other things. We must, therefore, 
conclude that, when they expressly reserved the lien of two 
cents a bushel they intended to abandon the lien for other 
and further charges, and intended to look to the owners for 
their payment. We can see no other reasonable conclusion. 
To have notified the board of trade that they claimed such a 
lien was so simple and natural an act, when they claimed the 
two cents a bushel, that it is impossible to believe they still 



76 Board of Trade, etc. v. Buckingham et al. [Sept. T., 
Opinion of the Court. 

intended to claim any other lien than for the two cents a 
bushel. Men never so act in matters involving their interests. 

After the board of trade assumed control over the grain, 
and before the stipulations were entered into, appellees had 
ample time to consider and determine the extent of their 
rights, and the manner in which they would enforce them; 
and we see that they determined to and did insist upon their 
lien to the extent of two cents a bushel on the grain that 
should be saved. It is, from all the circumstances surround- 
ing the transaction, manifest that they did not intend to in- 
sist upon a lien on the fund which they now claim, or they 
would in some manner have assei-ted it. They made no such 
claim, because, as it may be presumed, they supposed all was 
lost, and they, with the abandonment of the grain to the fire, 
with it abandoned all claim for past storage, except on such as 
might be saved. 

It is true that one of the appellees testifies that he did not 
intend to abandon or release his Hen. This may only imply 
that it had not occurred to him prior to the sale that he had 
any otiier lien than was reserved by the stipulation. He, 
however, does not say that he reserved or intended to reserve 
a lien for the claim here asserted. He says he declined to act 
on the committee appointed by the board of trade, lest he 
might compromise his interests. But as he afterwards only 
claimed and secured his lien of two cents on the bushel of 
corn saved from the fire, we must conclude that was the inter- 
est he was intending to preserve. 

Had appellees placed this corn in the hands of an agent, 
with power to sell, with directions to reserve two cents a bushel 
as charges, and pay the balance of the proceeds to the owners, 
no one would contend that they had not lost all claim of a lien 
on the fund for otlier and different charges. And in what 
does the present case differ? Here, tiie board of trade sold 
with the assent of appellees, they only reserving their Hen for 
two cents on the bushel of grain removed; and it was the un- 
derstanding that the sale was for the benefit of the owners, 



1872.] Pkoria County c Eoche. 77 

Syllabus. 

and impliedly the balance of the fund realized after paying 
expenses of preserving it and paying appellees their commis- 
sions as stipulated, to be paid to the owners. By this arrange- 
ment we have no hesitation in saying that appellees not only 
parted with the possession, but did so in such a manner as to 
release all liens on the property, except such as were expressly 
reserved by the stipulations executed before the sale. 

The charge made by appellee Buckingham, for labor and 
expenses incurred in preserving the grain, we regard as a 
proper claim against the fund. It was incurred in preserving 
the grain out of which the fund arises, and so far as it shall 
be proved to be correct it should be allowed to be deducted 
from the fund, and the balance divided amongst the receipt 
holders. 

The decree of the court below is reversed and the cause re- 
manded. 

Decree reversed. 



The Boakd of Supervisors of Peoria County 



James Roche. 

1. CoTTNTY — duty to pap expenses for protecting and preserving records 
and files of courts. Under the R. S. 1845, title Fees and Salaries, the 
clerks of the circuit and county commissioners' courts were required to 
provide all the necessary books for their respective offices, and a safe, 
press or presses, with locks and keys for the safe keeping of the archives 
of their respective offices. Under this statute, by a liberal construction, 
cases, pigeon holes, or boxes, may be included, and when recommended 
by the circuit judge and assented to by the circuit clerk may constitute a 
proper charge against the county. 



78 Peoria County v. Roche. [Sept, T., 

Opinion of the Court. 

2. Where the judge of the circuit court ordered the clerk of his court 
to proceed and index old court papers, and properly put them away in tin 
boxes previously provided, and the clerk employed his deputy to do this 
work of nights, promising him whatever sum the county might pay there- 
for, and that if the county did not pay the deputy, he would : Held, in a suit 
by the deputy clerk against the count3% that the county was not liable to 
paj^ for such service, it being the duty of the several clerks to do such 
work on their own account. 

3. In such a case where the board of supervisors allowed a portion of 
the claim, they being under no legal obligation to do so, it was held, that 
this could not be construed into an acknowledgment of liabilitj' on the 
part of the county for such services. 

Appeal from the Circuit Court of Peoria county; the Hon. 
Sabin D. Puterbaugh, Judge, presiding. 

Messrs. Johnson & Hopkins, for the appellants. 

Messrs. McCulloch & Stevens, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court : 

At the September term, 1869, of the Peoria circuit court, 
the judge of that court caused the following order to be 
entered on the record : 

"The judge of the court having examined the condition of 
the onice of the clerk of the circuit court of this county, and 
finding that the court pa])ers are not sufficiently protected : It 
is ordered that the clerk of this court, as soon as the same 
can be done, procure sufficient and suitable. cases, similar to 
those in tlie office of the county clerk, for the preservation of 
court paj)ers from dust, moisture and other exposure — the 
expense of the same to be paid by Peoria county." 

At the following December term this order was entered: 

** The judge of this court having examined into the condition 
of theciffice of the clerk of the circuit court of this county, 
and iiniiing said clerk, in obedience to an ordjer of court made 
at the September term of this court, A. D. 1869, has procured a 



1872.] Peoria County v. Roche. 79 

Opinion of the Court. 

sufficient number of boxes for the preservation of court papers, 
it is now ordered that said clerk procure a sufficient number 
of thimbles or envelopes for the further protection of said 
court papers, and that said clerk proceed at once to index 
said court papers, and properly put them away in said boxes." 

These orders were admitted in evidence, against appellant's 
objection. 

George A. Wilson was the clerk of the circuit court at this 
time, having been elected in 1868, the year previous. Appellee 
was his deputy. He was examined as a witness in the cause, 
and in answer to the question by the plaintiff as to the condi- 
tion of these files and papers before the work was done, he 
said they were in small thimbles, some of them worn out; 
the boxes they were put in were not tight, and they were 
dusty and injured. Roche put them in new wrappers, en- 
dorsed the number and name thereon, number of the box, and 
term when disposed of, and entered them in alphabetical 
order upon an index ; the work was worth five cents a pack- 
age ; was oi-dered by the court to do the work; told Roche 
he might do it and have whatever the county paid for it ; 
told him he could do it evenings; witness wanted his services 
in the day time. Approved Roche's bill and told him to take 
it to the county clerk — the usual way of presenting a bill 
against the county ; don't know the bill was ever presented to 
the board. The judiciary committee were in the office examin- 
ing the bill ; all of them not present ; they came in with the 
bill in hand and said they wanted to see what work Roche 
had done, and witness showed it to them. On his cross-ex- 
amination he said he told Roche if the county would not pay 
him, lie would. This work and procuring the boxes are the 
only things witness ever knew to be done in the clerk's office 
upon an order of the court. 

The plaintiff himself testified he was deputy clerk, and had 
worked in the clerk's office for the past five years. The papers 
he overhauled /lated back to 1826, and up to 1860 ; they 
were papers in common law and chancery causes, which had 



80 Pkoria County r. Roche. [Sept. T., 

Opinion of the Court. 

been disposed of by the court. Did it nights ; worked about 
three hundred and twenty nights, averaging two and one-half 
hours. The papers were dusty outside ; rapped the dust oif. 
The clerk got the boxes to put them in. The clerk got him 
to do the work. The envelopes he put them in were already 
procured, printed on the outside. The average price per day 
paid in the clerk's office is three dollars for eight or nine hours, 
but M^orth more to do the work at night after business hours. 
The only contract he had was with Wilson. The clerk told 
him to do it and the board of supervisors Mould pay him ; if 
they did not he, Wilson, would. Was at the time acting as 
deputy clerk. Thought he was working for the county, and 
Judge Puterbaugh (the circuit judge) told him the board of 
supervisors would pay him. 

Sevei-al questions are presented by the record on these facts, 
which deserve examination. 

In the order made at September term for the cases for the 
safe keeping of those old files, the expense was, as specified in 
the order, to be paid by the county. This was all well enough, 
us we have an old law to this eifect. " The clerks of the circuit 
and countv commissioners' courts shall provide all the neces- 
sary books for their respective offices, and a safe, press or 
presses, with locks and keys, for the safe keeping of the 
archives of their respective offices, and the county commis- 
sioners' court shall make allowances for the same." Ch. 41, 
title Fees and Salaries, sec. 32, R. S. 1845. By a very liberal 
construction of this provision, cases, pigeon holes or boxes 
might be included, and if ordered by the circuit judge, and the 
circuit clerk assented, might constitute a fair charge against 
the county. This charge for the boxes the county did pay 
without objection. But as to the musty old files, the clerk 
was directed to put in the boxes or cases in new thimbles, with 
proper endorsements on them. We are by no means satis- 
fied there was the slightest obligation on the county to pay 
the expenses attending that. It was the dutj of the prede- 
cessors of the clerk, Mr. Wilson, to have had these papers in 



1872.] PeOKIA COU-NTY f. EnCHE. 81 

Opiniontjf the Court. 



good order. They Avere required to give bond to the governor 
of the State, with security, in the sura of two thousand dollars, 
conditioned for the faithful performance of the duties of the 
office and to deliver up the papers, books, records and pro- 
ceedings appertaining to it, whole, safe and undefaced, when 
lawfully required so to do, and they each took an oath that 
they would faithfully perform this duty. Is it not going too 
far to say that for this dereliction of duty on the part of these 
clerks the county treasury shall be depleted? The present 
incumbent may become derelict ; he may fail to keep his papers 
in proper order ; he may suffer them to become defaced by 
dust or exposure, or moisture. "Would he think an obligation 
rested upon the county to pay his successor for his delin- 
quency ? Such is his sense of justice we are satisfied he 
would not. 

The boxes being provided and paid for by the county, the 
least the clerk could do would be to put the papers properly 
in them, the necessary envelopes all printed and properly 
prepared having been furnished by the county. 

If there was any liability on the county to pay for this work, 
from what did it arise? Not from any contract certainly, 
nor from any provision of law. The work was done under 
the order of the circuit judge, and in the order it was nowhere 
declared or provided it should be at the expense of the county, 
as in the previous order for the boxes and cases. The county 
employed neither the clerk, who was ordered by the judge of 
his court to do the work, nor the deputy who brings this 
action. There is certainly no privity whatever between the 
deputy and the county, whatever there may be between the 
clerk and the county, and we see none in either respect. 
Neither the judge of the circuit court nor the clerk had any 
right to pledge to appellee the credit of the county. On the 
contrary, the clerk, understanding his position, distinctly told 
appellee if the county did not pay him for the work, he would. 
The suit should* have been brought by the deputy against the 
clerk, and not against the county, unless, as appellee contends, 
6 — 6oTH III. 



82 Peoria County v. Roche. [Sept. T., 

Opinion of the Court. 

the county has become liable by paying a part of the claim. 
It seems when the bill was presented, the judiciary committee 
of the board, or a part of tlieni, examined the character of the 
work done, and the board allowed appellee the sum of two 
hundred and thirty dollars therefor. Before accejDting the 
order for this amount, appellee brouglit this action of assump- 
sit, and then went to the county clerk and received the order 
which the board had directed the clerk to issue for two 
hundred and thirty dollars. 

In the absence of all legal liability on the county to pay 
anything for this work, we are not disposed to consider this 
allowance bv the board as an acknowledgment of liability. 
The board, animated by what considerations we know not, 
were willing to jiay, and did ])ay, what they conceived justice 
required them to j)ay ; and it is ample compensation for work 
the clerk himself sluuild have done without any compensation. 

This clerk is required by law to keep all the papers in his 
custodv in good order and in a safe place, and has no right to 
call upon the county to aid him in putting them in order 
and in security. We are not of opinion, under the cir- 
cumstances of this case, that the payment made by the 
county should be construed into an acknowledgment of any 
liability beyond that they have admitted. The law imposes 
none on them. 

It is unnecessary to make any comments on the disposal of 
the motion for a change of venue on account of the prejudice 
of the judge. 

As to the point that an examination was ordered, that 
would not vitiate the judgment if otherwise proper. AA'e are 
of o])ini<)ii this action can not be maintained against appellants 
for the reasons given, aiul reverse the judgment. 

Judgment reversed. 



1872.] Fitch v. Conyne. 83 

Syllabus. 



George W. Fitch 

V. 

Jared D. Conyne. 

1. Rescissiok of executed contract — effect on title. Where the grantee 
of a ferry franchise, upon the delivery to him of his note given for the 
purchase price, surrendered his deed, which was unrecorded, the intention 
being to rescind the sale and conveyance : Held, that while the surrender 
of such deed did not restore the legal title to the grantor, yet in equity 
the contract was rescinded. 

2. Same — estoppel. And where such surrender was procured by sure- 
ties of the grantor, so that the franchise might be subject to execution 
against them and the grantor : Held, that such sureties, and all persons 
claiming through them with notice, were estopped to deny that such 
conveyance was rescinded. 

3. Same — ratification — what is. Where a party had conveyed a ferry 
franchise, taking a note for the price, payable to his wife, and, becoming 
involved, had left the country ; and his securities, with his father, who held 
the note, procured a rescission of the contract with the grantee, by deliv- 
ering up such note to the grantee, and the latter surrendering his unre- 
corded deed, intending thereby to restore the franchise to the grantor, 
and such grantor afterwards gave a power of attorney to convey the fran- 
chise for him, which was done: Held, that the giving of the power of 
attorney was a ratification of the rescission of the contract. 

4. Same — specific performance in equity. Where parties to a convey- 
ance of a ferry franchise mutuallj^ surrendered and delivered up the deed 
by the one, and the consideration received by the other, intending thereby 
to rescind the sale and conveyance, and the grantor, through an agent 
under power of attorney, sold and conveyed the same for a valuable con- 
sideration, the conveyance being duly recorded; and the grantee after- 
wards, for no consideration, conveyed the legal title in him to the defend- 
ant: Held, on bill in equity by the purchaser under the power of attorney, 
tliat the latter was entitled to have the last conveyance set aside and de- 
clared void, and that in equity, after such rescission, the first grantee could 
be compelled to re-convey- the legal title. 

Appeal from the Circuit Court of Whiteside county; the 
Hon. William W. Heaton, Judge, presiding. 

Messrs. Wilsok^, Sackett & Bean, for the appellant. 

Mr. O. F. Woodeuff, for the appellee. 



84 Fitch v. Conyne. [Sept. T., 

Opinion of the Court. 
Mr. Justice Scott delivered the opinion of the Court: 

The object of the bill in this case was to have a certain 
quit-claim deed, executed by Thomas K. Irwin to John 
Whalon for a ferry franchise, declared null and void, and to 
enjoin the clerk of Whiteside county from issuing a ferry 
license to the appellant under or by virtue of any action had 
by the board of supervisors, at the April term, 1870, and for 
general relief in the premises. 

The circuit court decreed the specific relief prayed for, and 
to reverse that decree the appellant prosecutes this appeal. 

Both parties claim the franchise in question, under title 
acquired by Alfred B. Campbell. It is conceded that Camp- 
bell did own the franchise, and that on the 14th of January, 
1S70, he sold and conveyed it by deed to Thomas K. Irwin, 
in consideration of which he executed his note to Mary 
Campbell for S300. The title thus conveyed to Irwin was, 
by means of certain conveyances, vested in the appellant. 
The question in the case is, whether the title was fairly ob- 
tained, and whether it ought to prevail against the equitable 
title of the appellee. 

The history of the case may be briefly given: It appears 
that Smith & Scotchbrook were sureties for Alfred B. Camp- 
bell on a certain replevin bond. The suit having terminated 
adversely to Campbell, they became liable for quite an amount 
of costs. Campbell had left the country — at least his place 
of residence was not known — and Smith & Scotchbrook be- 
came anxious to secure themselves against loss. For this 
purpose, they went to see Alanson Campbell, who was the 
fatiier. and perhaps the agent, of Alfred. He told them that 
he had nothing to secure tlieni with except Irwin's note of 
$300 to Mary Camj)bell. This he turned out to them. But 
upon inquiry, finding they could not use the note to advan- 
tage, they returned it. It was then agreed that Smith and 
Alanson Campbell should go to Irwin to make some arrange- 
ment to get the ferry itself, to secure Smith & Scotchbrook. 



1872.] Fitch v. Coyne. 85 

Opinion of the Court 

It is insisted by appellant that the arrangement then made 
with Irwin was that Smith & Scotchbrook became the owners 
of the ferry, which they subsequently sold to AVhalon, in 
consideration that he would pay the amount for which they 
were security, and that Whalon afterwards conveyed to him. 
On the other hand, the appellee insists that the legal effect 
of the arrangement then made was simply a rescission of the 
contract between Irwin and Alfred B. Campbell, so that the 
ferry would go back to him and be liable for the costs for 
which Smith & Scotchbrook were bound. We think the lat- 
ter theory is the best sustained by the evidence. At the inter- 
view between Irwin, and Smith and Campbell, it was agreed 
that in consideration that Alanson Campbell would deliver 
up his note made to Mary Campbell for the purchase money 
of the ferry, he (Irwin) would surrender the deed made to 
him by Alfred, which was accordingly done. 

We think the evidence shows that it was the intention 
of the parties to that transaction to rescind the contract, and 
nothing more. Irwin says it was " simply a trade back." Cer- 
tainly the weight of the evidence is to that effect. This 
view is strengthened by the fact that all that Smith & Scotch- 
brook wanted, in the first place, was to be made secure. If 
the contract was rescinded, the property would be liable to 
the execution for the debt for which they were sureties. It 
was of sufficient value to afford ample securitv. 
^ The mere fact that Irwin surrendered his unrecorded deed, 
did not restore the legal title to Alfred B. Campbell. In 
equity, however, the contract was rescinded, and Smith & 
Scotchbrook, and all persons claiming through them with 
notice, would be estopped to deny that it was rescinded, when 
it was done at their instance. 

It does not appear from the evidence that Alfred B. Camp- 
bell had previously given any authority, to any one, to rescind 
the contract; but after it was done, he made a power of attor- 
ney to Anderson to convey the franchise for him, which was 
a ratification of the rescission of the contract. On the 21st 



86 Fitch v. Conyne. [Sept. T., 

Opinion of the Court. 

day of February, 1870, Anderson, by virtue of the power of 
attorney from Campbell, conveyed the franchise by deed to 
Mrs. Maning, she having first paid the debt for which Smith 
& Scotchbrook were liable as securities, and that title, through 
several convevances, passed to the appellee before the present 
suit was instituted, and is made the basis for the relief sought. 

On the 22d day of February, 1870, one day after Mrs. 
Maning's deed was made and filed for record, Whalon went 
to Irwin, and represented to him that he was the owner of 
the ferry property; that he had paid the debt for which Smith 
& Scotchbrook were liable, and induced Irwin, under the be- 
lief that he Avas the real owner, to execute to him a quit-claim 
deed for it. The appellant now insists that the legal title so 
acquired by him shall prevail over the equitable title of ap- 
pellee. 

There are no innocent purchasers on either side to be 
afiected by this transaction. All parties, unless it was Mrs. 
Maning, had notice of what was being done when the several 
transfers were made. It is simply a question as to who has 
the prior equities, and Avhich shall prevail. 

In view of the evidence, we think that Smith and all par- 
ties claiming under him, as grantees from him or Irwin, are 
estopped in equity to deny that the coutract was in fact re- 
scinded, although the legal title still remained in Irwin. 
Undoubtedly, Alfred Campbell could iiave compelled Irwin 
to execute to him a conveyance. He had received back the 
consideration, and he was, in equity, bound to re-convev. 
This fact was known to Whalon. Irwin expressly told him 
that he had rescinded the contract with Campbell, and had 
no title to convey to liim. He knew, or could have known 
by examining the record, that Alfred Campbell had acquiesced 
in the rescission of the contract, for lie had tiien, by his attor- 
ney in fact, conveyed the franchise to Mrs. Maning, and her 
deed was on record. Whalon paid no consideration whatever 
to Irwin for the deed, and if he paid the costs for which 
Smith & Scotchbrook were liable, he paid them after they had 



I 



1872. ] Jacobs v. Hayes. 87 

Syllabus. 

been paid by Mrs. Maning. It was part of the contract that 
Mrs. Maning should pay the costs, and she paid them, at the 
request of Campbell, as part consideration for the franchise 
purchased of him. 

After Smith had procured the rescission of the contract, 
Whalon, as a purchaser from him with notice, could not pur- 
chase the legal title from Irwin, and hold it as against the 
title of the assignee of Alfred Campbell. It would be in- 
equitable to allow him to do so. 

In no aspect of the case does it appear that Whalon acted 
in good faith in procuring the deed from Irwin. It was in 
fraud of the rights of the assignee of Campbell, and the 
court decreed correctly in declaring it void and of no effect. 

It will not be necessary to inquire whether the license to 
appellant was granted by the board of supervisors in contra- 
vention of the statute. The appellee was the equitable owner 
of the ferry franchise, and the court could properly decree 
that he should enjoy it without any interference from the 
appellant, and this seems to be the extent of the decree. 

Perceiving no error in the record, the decree is affirmed. 

Decree affirmed. 



Peter Jacobs 

V. 

William Hayes. 

Prevention of domestic animals fkom running at large — who may 
order election under act of 1867. The 10th section of the act of 1867, en- 
titled "An act to prevent domestic animals from running at large in the 
counties of Monroe, St. Clair, and other counties," provides that, " in case 



Jacobs v. Hayes. [Sept. T., 



Opinion of the Court. 



a majority of the votes cast are against keeping up stock, the county court 
of said county shall have power, at any regular term thereafter, to submit 
the same question to the voters of said county at any subsequent regular 
November election, in manner aforesaid," etc : Held, that, in counties hav- 
ing adopted township organization, the power conferred b}"" this section to 
order a new election was upon the county court, and not upon the board 
of supervisors. 

Appeal from the County Court of La Salle county; the 
Hon. Charles H. Gilman, Judge, presiding. 

Mr. H. K. Boyle, and Mr. T. S. Bowen, for the appellant. 

Messrs. Mayo & AVidmer, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

Hayes sued Jacobs before a justice of the peace of La Salle 
county, for damages done to his unenclosed crops by Jacob's 
cattle while running at large. 

The case was appealed to the county court of that county, 
where it was tried before the court and a jury. Hayes recov- 
ered, and Jacobs brings the case to this court by appeal. 

The whole case turned upon the validity of a vote by the 
electors of that county, taken at the November election of 
1868, under an order of said county court made on the first 
Monday of June, the same year. The election resulted in a 
majority for " keeping up stock.'' 

This was under the provisions of an act approved March 
7tli, lSf)7, entitled "An act to prevent domestic animals from 
running at large in the counties of Monroe, St. Clair, and 
other counties." 

The same question had been submitted to the voters of 
La Salle county, one of the counties mentioned in the act, at 
the regular election in 1867, and there was then a majority 
" against keeping up stock." The 10th section of the act pro- 
vides that, " in case a majority of the votes cast are 'against 
keeping up stock,' the county court of said county shall have 



1872.] Jacobs v. Hayes. 89 

Opinion of the Court. 

power, at any regular term thereafter, to submit the same 
question to the voters of said county at any subsequent regu- 
lar November election, in manner aforesaid," etc. 

The grounds upon which the validity of the second vote is 
assailed, are these: (1). La Salle county being under township 
organization, the power of ordering the vote taken legitimately 
belonged to the board of supervisors, and such board will be 
<leemed to have been intended by the legislature in the use of 
tlie term "county court." (2.) Even conceding that the legis- 
lature intended the power to be exercised by the county court, 
still it could be done only at a regular term ; and by the acts 
of 1849 and 1859, relating to county courts and the terms 
thereof, no regular term could be holden on the first Monday 
in June. 

Neither of these grounds is tenable. The legislature had 
the constitutional authority to vest the power in question in 
the county court as well as in the board of supervisors. 

We are bound to presume that the legislature knew that 
La Salle county, and most of the other counties to which the 
provisions of that act were. made applicable, were respectively 
under township organization, and had boards of supervisors 
which might appropriately exercise this power. But, know- 
ing this, they nevertheless saw fit to confer it in plain and 
unambiguous language upon the county courts. There is no 
basis for construction or interpretation, because there is no 
ambiguity; the sense is manifest. 

The second ground is equally untenable. By an act ap- 
proved Feb. 15, 1855, it is declared that, "in all counties in 
this State which have adopted or shall hereafter adopt 'town- 
ship organization,' the December, March, June and September 
terms of the county court shall commence on the first Mon- 
days of said months respectively." 

The other objection is still less worthy of consideration, and 
the judgment of the court below must be affirmed. 

Judgment affirmed. 



90 Harding i: R. R I. <fe St. L. R. R. Co. et al. [Sept. T., 

Syllabus. 



Abner C. Harding 

V. 

The Rockford, Rock Island and St. Louis Railroad 
Company et al. 

. 1. MimiciPAL SUBSCRIPTION in aid of railroad — strict compliance. Mu- 
nicipal corporations, such as counties, being created for governmental pur- 
poses, where they exercise the function of subscribing in aid of railways 
under statutes, the power to do so must not only be clearly conferred, but 
strictly pursued. 

2. Same — notice of election. "WTiere county authorities are authorized to 
subscribe, in behalf of their count}^ to the capital stock of a railroad com- 
pany, upon an election resulting in favor of the same, if the general or 
special statute controlling the election requires the publication or posting 
of a notice thereof for thirty days prior to the holding of the election, and 
this is not done, the election will be invalid, and the expression of the 
will of the voters thus obtained will confer no authority upon the board 
of supervisors either to make the subscription, or to issue the bonds of the 
county. 

3. Where an act of the legislature authorized anycountj' through which 
a certain railroad might pass, to subscribe to its capital stock to a limited 
amount, upon a favorable election, and required thirty daj-^s prior notice 
to be given, a later act was passed authorizing subscriptions under certain 
other limitations, which also required the submission of the question to a 
vote of the people, " in such manner as the county authorities " might de. 
termine, but specified no particular time as to notice of the election: Held, 
that the latter act did not repeal, by implication, the prior acts requiring 
thirty days notice of an election, to be given; and that the words "t7i such 
manner as the county authorities may determine," in the last act, did not 
necessarily refer to the time of the notice, but had relation to the condi- 
tions to be inserted in the notice as to the amount of the subscription, the 
time the bonds should run and their rate of interest. 

4. But even if the board of supervisors had the power to fix the time 
of the notice of the election, it could only do so by an order or resolution 
entered upon the record. And where the board, in ordering such an elec- 
tion, fixed no time for such notice, but merely directed that it should be 
conducted according to law, they failed to exercise the power conferred, 
and if the prior act was repealed, the act of 1849, which required thirty 
days notice, governed, and there not being notice of thirty days prior to 
the election, it was invalid, and conferred no power upon the board to 
make the subscription. 



1872.] Harding v. R. E. I. & St. L. R. R. Co. et al. 91 

Opinion of the Court. 

5. SxiiTUTES — repeal by implication. The presumption of repeal by im- 
plication should never be indulged if the two acts can be reconciled. 
There must be a total repugnancy. A repeal by implication has never been 
favored by the courts, and ought never to be allowed when it would lead 
to an absurd consequence, and stamp the legislation as wholly unreason- 
able, if such results can be avoided. 

6. Where the legislature, at the same session, passed two acts authoriz- 
ing municipal subscriptions in aid of a railroad company, in the first of 
which the amount of the subscription was limited, and the bonds might 
be issued maturing in thirty years, while in the second there was no limit- 
ation as to the amount, and the bonds were required to mature in twenty 
years: JE[eld, that the latter act, by implication, repealed the prior one, as 
to the limitation of the amount of subscription, and as to the length of 
time the bonds might run before their maturity, there being a palpable re. 
pugnancy to this extent. 

Appeal, from the Circuit Court of Warren county ; the 
Hon. Arthur A. Smith, Judge, presiding. 

Messrs. Harding & McCoy, for the appellant. 

Mr. Charles M. Osborn and Mr. S. W. Fuller, for the 
appellees. 

K Mr. Justice Thornton delivered the opinion of the Court : 

This bill was filed to enjoin the county of Warren from 
issuing its bonds in aid of the railway company. 

An injunction was issued, which was dissolved, and a de- 
cree was rendered dismissing the bill and awarding damages 
against the complainant to the amount of $13,000. 

The county had no authority to issue bonds to the railroad 
company until the question had been submitted to the legal 
voters of the county, in conformity to the law, and been sanc- 
tioned by them. 

There was an election, and a majority of the voters voted 
in favor of subscription; but thirty days notice of the election 
was not given, either by publication in a newspaper or other- 
! wise. 



I 



S2 Harding v. II. R. I. & St. L. E. E. Co. e^ a/. [Sept.T., 

Opinion of the Court. 

Tlie only question we propose to consider is, was the omis- 
sion to give notice for thirty days fatal to the riglitful exer- 
cise of the power to issue tlie bonds ? 

If any general or special statute which controlled the elec- 
tion required the publication or posting of a notice for tliirty 
<lays prior to the holding of the election, and this was not done, 
then the election was invalid, and the expression of the will 
of the voters thus obtained conferred no power upon the board 
of supervisors either to make the subscription or to issue the 
bonds. Such municipalities were not created with the view 
to engage in commerce, or to aid in the construction of rail- 
ways, but for governmental purposes only. AVhen they exer- 
cise the functions given by the statutes under consideration, 
the powers granted must not only be clearly conferred, but 
strictly pursued. If the mode prescribed for carrying into 
effect the right to issue bonds is not complied with in all ma- 
terial matter, then the boinls sliould not be issued; and thus 
tlie taxiiaycr will be exempt from the imposition of illegal 
taxes and a grievous burden upon his ])roperty. 

These principles have been so elaborately discussed and 
fully settled by this court that we need only to refer to some 
of the cases: TJie People v. Tazewell County, 22 111. 147 ; FuKdi 
County V. The JJii^.smippi and Wabash Bail road Co. 21 111.373; 
Supervisors of Schuyler Cdu)dy v. The People, 25 111. 181 ; S^l- 
periisors of Hancock County v. Clark, 27 ib. 305; 3Iarshall 
Cou)dy V. Cook, 38 ib. 44 ; Wiley v. The 2oicn of Briuifeld, 59 
ib. 306. 

There were three acts passed at the same session of the 
legislature, which have some reference to the issue of bonds 
in aid of the construction of this railroad. It is, however, 
strenuously urged that the act of March 26th, 1869, is not ap- 
plicable to the election and jiroceedings in the county of War- 
ren ; and that this county is carefully excluded from the pro- 
visions of the act. This we shall concede. 

The other two acts are of tlie dates, respectively, of March 
4th and March 25th, 1869. The first is an act amendatory 



1872.] Harding i-. R. R. I. & St. L. R. R. Co. et al. 9a 

Opinion of the Court. 

of the charter of the railroad company ; the other is "An act 
to authorize certain counties and towns therein named to sub- 
scribe stock in railroad companies;" and it authorizes the coun- 
ties of Rock Island, ]Nrercer, Warren, McDonough, Schuyler, 
Cass, Scott and Greene, only, and the several towns therein, 
to subscribe to the capital stock of any railroad company, 
when the road should pass in Avhole or in part through them. 
Though the act does not name the railway company which 
was made a defendant to the bill, yet w'e gather from the rec- 
ord that the defendant company does run its road through 
these counties, and that the bonds, the issue of Avhich was en- 
joined, are for its benefit, and that it claims them by force of 
the provisions of the act of March 25th, and the election 
which, it is insisted, Avas held under it. 

The stress of the argument in behalf of the railroad com- 
pany is, that the several provisions of the act of March 4th, 
in relation to subscription to the capital stock of the company, 
an election, and the issue of bonds, are repealed by the later 
act; and that therefore the act of March 25th must control as 
to the requisite notice of the election. 

There are numerous objections to this position. The later 
act contains no express repeal, and the repeal of the first act 
can only be implied from the repugnancy between the two 
statutes. , 4r 

The intention of the legislature must always be presumed 
to be in consonance with reason and good discretion, and a re- 
peal by implication, or a particular construction, should never 
be indulged, which would lead to an absurd consequence, and 
stamp the legislation as wholly unreasonable, if such results 
can be avoided. 

The act of March 4th authorized any county through which 
the road might pass, to subscribe to the capital stock of the 
company, to a limited amount; provided for an election, and 
required a notice of it to be given for thirty days. Under 
this act the subscription could be made by the county court or 
board of supervisors. 



94 Harding v. R. R. I. & St. L. R. R. Co. e< aZ. [Sept. T., 
Opinion of the Court. 

The act of March 26th was ''An act to empower county 
courts, and the corporate authorities of cities and incorporated 
towns, to subscribe to the stock " of the same company. It 
also provided that no subscription should be made until the 
question should be submitted to a vote of the legal voters, and 
that no such election should be held until at least thirty days 
notice of the election should be given in the manner provided 
by law. 

The act of March 25th also required the submission of the 
question of subscription to the vote of the people of the county, 
''in such manner as the county authorities" might determine, 
but specified no particular time as to notice of the election. 

The position assumed is that, as Warren county was gov- 
erned by the township organization law, therefore the act of 
March 26th could have no application to the action of the 
board of supervisors of that county ; and that the notice of 
the election, required by the act of March 4th, was abrogated 
by the subsequent act of March 25th; therefore the time of 
notice of the election in Warren county was left to the discre- 
tion of the board of supervisors. 

From such a line of argument absurd consequences follow, 
and unwise, inconsistent and unreasonable legislation results. 

l>y the first in date of the series of acts of the same session, 
where a limited amount* of stock was authorized to be sub- 
scribed, and a vote to be taken before subscription, the pre- 
caution was used to require thirty days notice of the election. 
AVlien, by the act of March 26th, an amount not exceeding 
$.'3000 per mile was authorized to be subscribed, upon a favor- 
able vote, in counties not having townsliip organization, again 
tiiirty days notice was required to be given of the election. 

Tiie act of the 25th of March, if to he considered alone, 
did not require any spceKic notice, but left the whole matter 
to the pleasure of the corporate authorities in certain enumer- 
ated counties. 

Wlierefore such discrimination as to different classes of 
counties? Wherefore such safeguards in the one case, and, 



1872.] Harding v. R. E. I. & St. L. E. E. Co. et al. 95 

Opinion of the Court. 

virtually, none in the other? Wherefore in one county re- 
quire a particular notice, longer than usual in ordinary elec- 
tions, and in another leave the whole matter of notice to the 
arbitrary discretion of the county authorities? 

Such absurdities should not be imputed to the legislature, 
if the acts are susceptible of a different construction, which 
will alike maintain the wisdom of the legislation, and protect 
the people from uncontrolled power. 

Is, then, the proviso to section 6 of the act of March 4th, 
(3 Vol. Pri. Laws 1869, p. 343,) as to the notice of the elec- 
tion, repealed by section 10 of the act of March 25th ? (Vol. 
3, Private Laws 1869, p. 370.) 

The first act, prior to subscription, required an election in 
conformity to the laws in regard to ordinary State, county, 
city or town elections, and a notice to be given of it for thirty 
days. Section 10 of the later act also required an election 
on the question of subscrij)tion, and concludes as follows: 
''Such question shall be submitted in such manner as the 
county authorities may determine as to the county, or as the 
town auditors may determine as to towns." 

According to both acts, the denomination of the bonds to 
be issued was not to be less than $100, and to bear interest 
not to exceed 10 per centum per annum ; but in the first the 
amount of subscription was limited to $100,000 by any county, 
town, etc., and in the later act the amount was unlimited ; and 
in the one the period for which the bonds might run was 
thirty years ; while in the other the period was only for 
twenty years. 

What was the mischief intended to be remedied by the sub- 
sequent enactment? What change was evidently made? 

The evils, manifestly, intended to be removed Avere the lim- 
itation imposed as to the amount of subscription, and the time 
for the maturity of the bonds, as provided in the act of the 
4th of March. 

From a close analysis of the two acts, it is apparent that the 
amount of subscription to be voted upon was to be left 



96 Harding v. R. R. I. & St. L. R. R. Co. et al [Sept. T., 
Opinion of the Court. 

unrestricted, and that the bonds sliould mature in at least 
twenty years. 

To tliis extent there is a palpable repugnancy between the 
two enactments, and a repeal of the inconsistent provisions 
contained in the former act, by necessary implication. But 
the question as to the repeal of the provision for a notice of 
the election is altogether a different one. In the first act a 
specific notice was required, and the number of days for which 
it should be given, and the manner of its publication, -were 
plainly fixed. In the subsequent act there is nothing neces- 
sarily antagonistic to these requirements. The only woi'ds 
inconsistent with the continued existence of the first })rovision 
are the following: "Such question shall be submitted in such 
manner as the county authorities may determine." They do 
not, by necessity, refer to the time of notice; and as both acts 
have reference to the same subject matter, and are for the 
benefit of the same railway, the language of the lOth section 
may properly, and should, be construed to have relation to the 
condition to be inserted in the notice as to the amount of sub- 
scription, the period in which the bonds would mature, and 
the rate of interest. Hence, when the board of supervisors 
adopted its resolution, and made the amount of subscription 
$200,000, the time in which the bonds should be redeemable, 
twenty years, and named the day of the election, and the rate 
of interest eight per cent, it fixed the manner of submission. 
These matters were left to the discretion of the board, but the 
law had settled the time for which the notice should be given. 

When we consider tlie whole legislation upon the subject of 
granting aid to this railway, and the care with which the leg- 
islature had guarded the people from imposition, in requiring 
notice of all elections to be given for a sufficiently long time, 
and in providing for its due publication, it is a most unreason- 
able conclusion that all these safeguards were removed, and 
the taxpayers of Warren county were left entirely to the mercy 
of the county authorities. 



1872.J Harding v. E. R. I. & St. L. E. E. Co. d al. 97 

Opinion of the Court. 

If the manner of submitting the question of subscription 
included the whole subject, the time, as well as the mode, of 
giving the notice, then the time of the notice was left to the 
arbitrary discretion of the board of supervisors. Any notice 
even one day, would fulfill the requirement of the law, and 
the people of the county might be involved in a burdensome 
debt, without their knowledge, by a small minority of the 
voters. 

But concede that the board of supervisors, by virtue of the 
10th section of the act of March 25th, had control of the 
whole subject, what action did it take? It will certainly not 
be contended that it had power to order and hold an election 
without any notice to the electors. This would have been the 
veriest mockery, a delusion practiced under color of law. 

If the whole subject was committed to the board, then the 
duty was imposed to determine the time for which the notice 
should be given, and to direct its publication. This it could 
do only as a board, by an order or resolution entered upon the 
record. 

Upon an examination of the proceedings of the board, it 
will be found that no mention is made of any notice, in terms. 
The day of election was fixed, and then it was ordered that 
the election be conducted according to law. After the adop- 
tion of the resolution, thirty days notice might have been 
given of the election prior to the day fixed for holding it. 
The board, then, did not provide for any notice, or the time 
of its publication. The power conferred was not exercised. 
The manner of submission, so far as time was concerned, was 
not determined. It was merely ordered that the election 
should be conducted according to law. 

If the special act of March 4th was repealed, what law 
would govern? We do not think that the laws in regard to 
ordinary State, county and town elections would control. The 
general law of 1849, in relation to subscriptions for shares of 
stock in railroad companies, would be more strictly applicable, 
7 — 65th III. 



98 Harding v. R. R. I. & St. L. R. R. Co. et ah [Sept. T., 

Opinion of the Court. 

because it is in reference to the same subject matter. Sess. 
(second) Laws 1849, p. 28. This general law requires notice 
for thirty davs to be given of all such elections. 

The presumption of repeal by implication should never be 
indulged, if the two acts can be reconciled. There must be a 
total repugnancy. The doctrine has never been favored by 
the courts, and should not be applied in this case. 

We are of opinion that the proviso to section 6 of the act 
of the 4th of March is not abrogated by section 10 of the sub- 
sequent act. Their reconciliation in the manner we have at- 
tempted will best subserve the public good; and the validity 
of both, thus reconciled, will make the legislation more in 
accordance with reason, shield the legislature from an absurd- 
ity, and prevent serious consequences. 

As the election was invalid for want of sufficient notice, 
there was no power to make the subscription, and none was 
conferred by the vote to issue the bonds. 

The decree dissolving the injunction and assessing damages 

against the complainant, and dismissing the bill, is reversed, 

and the cause remanded, with directions to grant the prayer 

of the bill. 

Decree reversed. 

Mr. Chief Justice Lawrence did not sit in tliis case. 



1872. ] Fisher v. Sievres. 99 



Opinion of the Court. 



August Fisher 

V. 

Andeew Sievres. 

Lost becord — how restored — chancery jurisdiction. Where the record 
of an unsatisfied judgment is destroyed, chancery will not entertain juris- 
diction to restore to the judgment creditor the benefit of his judgment, 
for the reason there is an adequate remedy at law, by motion, in the court 
in which the judgment was rendered, to supply the record. 

Appeal from the Circuit Court of Cook county. 

Messrs. Story & Kikg, for the appellant. 

Mr. John Lyle King, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

The bill in chancery in this case, filed in the circuit court 
of Cook county, sets forth that on the 2d day of August, 1871, 
in a suit at law, wherein Sievres was plaintiff and Fisher de- 
fendant, a judgment was recovered by the former against the 
latter in the said circuit court for the sum of $125, and that 
on the 9th day of October, 1871, the court house in the city 
of Chicago, together with all the books, papers and records 
of said court, and of its clerk's office, among which were the 
tiles and the record of said suit and said judgment, was wholly 
consumed and destroyed by fire. 

The bill further alleges that no execution ever issued on 
the judgment; that the court had denied a motion for an 
order that execution issue on it, and prays that the judgment 
be made and declared a decree of the circuit court, or that 
Fisher be declared indebted to the complainant in the amount 
of the judgment, and be decreed to pay the same, or that 
execution issue against Fisher. 



100 Fisher v. Sievkes. [Sept. T., 

Opinion of the Court. 

The bill waived the answer of the defendant, under oath. 
The court rendered a decree against Fisher for the amount 
of the judgment. 

He appeals, and makes the objection that the bill should 
have been dismissed, because there was a complete remedy at 
law. 

A court of equity not unfrequently takes jtirisdiction in 
the case of lost or destroyed instruments of evidence, under 
the familiar head of equity jurisdiction arising from acci- 
dent; but it is not every case of accident which Avill justify 
the interposition of a court of equity. 

The jurisdiction will be exercised only Avhen a court of 
law can not grant suitable relief. ] Story Eq. Jur. sec. 79. 

In the case of lost instruments of writing under seal, equity 
interposes, for the reason that, until a recent period, the doc- 
trine prevailed that tiiere could be no remedy on a lost bond, 
in a court of common law, because there could be no profert 
of the instrument, without which the declaration would be 
defective; and as the jurisdiction was originally assumed for 
that reason, it is still retained. And in the case of lost nego- 
tiable securities, where the purposes of justice may require 
that a suitable bond of indemnity should be given, a remedy 
may be had in equity, where an offer of indemnity may be 
made and the indemnity be provided for. 

We apprehend the bill must always lay some ground be- 
sides the mere loss of the instrument of evidence, to justify 
the interposition of a court of equity to grant relief. 1 Story 
Eq. Jur. see's 84 and 86. 

No otUer ground is here laid besides the destruction 
of the record. It docs not appear wherin a court of law 
could not grant the needed relief, where, as here no more 
is sought tiiau a decree for the payment of the amount of 
a judgment and process for its collection. We do not per- 
ceive why an action at law might not as well have been 
brought upon this judgment as a suit in equity; why the 
same evidence would not have been admissible in the one 



1872.] Herrick v. Gary. 101 

Syllabus. 

court as in the other, and why the same proof that would 
have justified a decree in chancery for the amount of the judg- 
ment would not have warranted a judgment at law for the 
recovery of the same amount. 

Besides, there was a remedy at law, by motion in the court 
in which the judgment was rendered, to supply the record. 

We are of opinion the bill should have been dismissed, 
because there was an adequate remedy at law. 

The decree is reversed and the bill dismissed without pre- 
judice. 

Decree reversed. 

Mr. Chief Justice Lawrence, Mr. Justice Scott and 
Mr. Justice Thornton, dissent. 

Mr. Justice Breese: I concur in holding the remedy was 
complete at law by motion in the court in which the judgment 
was rendered. 



John H. Herrick 

V. 

JuDE P. Gary. 

1. Shekp having contagious disease — right of action. Under the act of 
Feb. 16, 1865, relating to diseased sheep, it is clear that the owner of sheep 
having a contagious disease, has no rLdit to let them run even upon his 
own land where they can communicate disease to sheep lawfully pastured 
in an adjoining field. 

3. Same — communication of the disease indirectly. Where the defendant 
kept his sheep which were infected with the scab, in his own pasture, 
adjoining that of the pla-intiff, the two pastures being separated by a division 



102 Heerick v. Gary. [Sept. T., 

Opinion of the Court. 

fence, and defendant's sheep, through want of repair in his portion of the 
fence, escaped into the plaintiff's pasture, where the plaintiff had a lot of 
sheep, part belonging to himself and part to his father, so that it was doubt- 
ful whether plaintiff 's or his father's sheep were first infected : Held, that an 
instruction, if it was as likely the plaintiff's sheep caught the disease 
elsewhere as from defendant's sheep, the jury should find for defendant, 
was erroneous, being highly calculated to mislead; and that if anj' of the 
flock were infected, and the disease thereby communicated to plaintiff's 
sheep, the defendant was liable. 

3. Same — care required of plaintiff. Where a plaintiff's sheep are 
infected from the sheep of the defendant, the former will not be held 
responsible for more than ordinary care and skill in their treatment; but 
even if they could have been cured by proper care and treatment, this 
will not exonerate the defendant from liability for the trouble and expense 
incurred by the plaintiff. 

4. Same — instruction as to negligence of plaintiff. Where the plaintiff 
had his sheep in his own pasture, and they were infected with disease from 
defendant's sheep, kept by him in an adjoining pasture, from which they 
escaped through defects in defendant's part of the division fence, and 
communicated with plaintiff's sheep, the court instructed the jurj', for the 
defendant, that if the plaintiff's negligence caused the damage, or con- 
tributed to it equally with that of the defendant, they must find for the 
defendant : HeM. that this could not refer to defective care after infec- 
tion, as that could not wholly exonerate defendant; and in reference to 
want of care before infection, it was erroneous for the reason there was no 
proof upon which to base it. 

Appeal from the Circuit Court of De Kalb county; the 
Hon. Theodore D. Murphy, Judge, presiding. 

Messrs. Wheaton, Smith t(; McDot.p:, for the appellant. 

Mr. Elbert H. Gary, for the appellee. 

Mr. Chief Justice Lawrenck delivered the opinion of 
the Court : 

An act of the legislature, passed February 16, 1865, pro- 
vides that any person who suffers sheep owned by him, and 
known to be infected by contagious disease, to run at large, 
or who keeps them in any jilace where other sheep can have 



1S72.] Heeeick v. Gaey. lOS 

Opinion of the Court. 

access to, or be infected by them, shall be liable to pay all 
resulting damages. This suit was brought under this statute 
■by Herrick against Gary. The jury found for the defendant, 
and Herrick appealed. 

There is no doubt, upon the evidence, that Gary's sheep 
were suffering from a contagions disease known as the scab; 
that they were in a pasture on Gary's farm ; that Gary's por- 
tion of the fence between his pasture and the adjoining one 
of Herrick, where the latter's sheep were kept, was not in 
good condition ; that Herrick's sheep became diseased and 
many of them died, and that several of Gary's sheep were in 
the flock of appellant before the disease appeared in the 
latter's flock. 

Under this statute it is clear that the owner of sheep having 
a contagious disease has no right to let them run, even upon 
his own land, where they can communicate disease to sheep 
lawfully pastured in an adjoining field. The design of the 
statute evidently was, not only to forbid the owner from 
allowing such sheep to run at large, but to require him to 
keep them on his own farm in such manner as not to come 
in contact with the sheep of a neighbor. The testimony in 
this record is, that the disease above named can be communi- 
cated from one flock to another, even though constantly sep- 
arated by an ordinary fence. However this may be, in this 
case the sheep occasionally escaped from one pasture to 
the other, and the preponderance of the evidence is that it 
was in consequence of that portion of the division fence which 
belonged to defendant being out of repair. The defense seems 
to have been made on the ground that the plaintiff's sheep 
may have caught the disease from other sheep than those of 
the defendant, and that the evidence as strongly sustained 
one hypothesis as the other. Another defense was, that the 
plaintiff failed to take proper care of his sheep after they 
became diseased. 

In reference to the first ground of defense, the court 
instructed the jury in substance that if it was as likely the 



104 Herrick v. Gary. [Sept. T., 

Opinion of the Court. 

plaintiff's sheep caught the disease elsewhere as from the 
defendant's sheep, they should find for the defendant. In view 
of the evidence in this case, this instruction, however correct 
it might sometimes be, was highly calculated to mislead. The 
record shows that a portion of the flock in plaintiff's pasture 
belonged to plaintiff 's father. It also shows that plaintiff's 
sheep, or a part of them, were sometimes on the public high- 
way, but it does not appear that they there came in contact 
with other sheep. The plaintiff, when on the stand, was 
asked how he knew that his own sheep did not take the dis- 
ease from his father's sheep. He replied that as they were 
together, of course he could not tell which took it first. We 
presume it was urged upon the jury, as it is now argued here 
by defendant's counsel, that if, as a matter of fact, the first 
sheep attacked in plaintiff's pasture belonged to his father, 
and the disease spread from such sheep, the plaintiff could not 
recover, and unless the jury could determine affirmatively, 
from the evidence, that the sheep of plaintiff were the first to 
become infected, he had failed to make out his case. The 
jury would, doubtless, understand the first instruction in that 
way, and as having reference to the sheep of plaintiff's 
father. 

From this theory we totally dissent. It might as well be 
said that if only one of plaintiff's sheep caught the disease 
from defendant's flock directly, and the contagion spread from 
such sheep to the rest of tiie flock, the plaintiff could recover 
only for the one slieep thus directly infected. The sheep of 
the plaintiff and of his father were running together in plain- 
tiff's pasture as a single flock. If the disease was comnmni- 
cated by defendant's flock at all, it is wholly immaterial 
whether the first sheep infected in plaintiff's pasture belonged 
to him or to his father. The statute is not to be defeated by 
any such hair-splitting refinements. In either case the disease 
should be regarded as conamunicated directly by the defend- 
ant's flock. The unreasonableness of the rule contended for 
is apparent when we remember that the plaintiff can certainly 



1872.] Heeeick v. Gaey. 105 

Opinion of the Court. 

not recover from his father, nor his father from him, and in 
case the entire flock had been destroyed by the defendant's 
violation of the statute, there could, on this theory, be no 
recovery against him, because the jury could not determine 
which individual sheep in plaintiff's pasture first caught the 
contagion. The first instruction should have been qualified 
so as not to mislead the jury in this regard. 

The instructions in regard to the treatment of his diseased 
sheep by the plaintiff should also be modified. The plaintiff 
can not be held responsible for more than ordinary care and 
skill. See Ilount v. Hunter, 58 111, 246. 

The 4th instruction is also objectionable. It tells the jury 
that if the plaintiff's negligence caused the damage, or con- 
tributed to it equally with that of the defendant, they must 
find for the defendant. This does not, of course, relate to 
defective care or medical treatment after the sheep became 
diseased, since, even if the sheep could have been cured by 
proper care, the defendant would still have been liable for the 
expense and trouble incurred, if liable at all. It can only 
properly refer to some supposed want of care on plaintiff's 
part prior to the communication of the disease, and yet we 
see nothing of that character in the record to which it could 
properly apply. The plaintiff had a right to have his sheep 
where they were, and the fact that more or less of them may 
have been in poor flesh would not excuse the defendant, if 
otherwise liable. This instruction, in its present general form, 
should not have been given. The judgment is reversed and 
the cause remanded. 

Judgment reversed. 



106 Frekman et al. Admrs. v. Freeman. [Sept. T., 

Syllabus. 



Nicholas Freeman et al. Admrs. etc. 

V. 

James Freeman. 

1. Parent and crvld— presumption as to pay for services after majority- 
Where a child remains with his father after his majority, the presump- 
tion will be, in the absence of a contract to pay for services, or circum- 
stances from which one may be implied, that no compensation was to be 
given for such services. 

2. But where a son, some time after bis majority, left his parents, and 
commenced business on his own account, and was afterwards induced by 
his father to return, all his other sons having left him, and he continued 
to labor for his father for many years, manajring his affairs and support- 
ing his parents, for which he received nothing but his board, scanty 
clothing and a little spending money: Held, that it was but reasonable 
to presume that the father intended to pay, and the son to receive pay, 
for his labor, either in mone}' or by devise in his father's will. 

3. And in such a case, where the proof showed that the fiither intended 
to compensate such son, by devising his farm to him, but was killed be- 
fore he had made his will: Held, that a verdict in favor of the son foi 
services, against the father's estate, for the time the sou labored within tivt 
years prior to the father's death, would not be disturbed. 

4. Statute op limitations— /or services. Where a son, who, after his 
majority, had left his father, was b}' the latter induced to return and re- 
main in his service for 23 years, under the expectation of being compen- 
sated by devise in his father's will, but the father, being accidentally 
killed, failed to make any will, and the son filed his claim for services, 
against the father's estate: Held, that, the statute of limitations being 
pleaded, the son could only recover for his services for the five years next 
before presenting his claim, deducting the time that elapsed between the 
death of the father and the day fixed by the administrators for the adjust- 
ment of claims. 

Writ of Error to the Circuit Court of Kane county; tlie 
Hon. Sii-VANUS Wii.cox, Judge, presiding. 

Messrs. Botsford, Barry tt Lovei.t>, for the phtintiffs in 
error. 

Mr. John W. Ranstead, for tlie defendant iu error. 



1872.] Freeman et ah Admes. v. Freeman. 107' 

Opinion of the Court. 
Mr. Justice Walker delivered the opinion of the Court : 

This was a claim, filed in the probate court of Kane county, 
for $2821, against the estate of Patrick Freeman, deceased, 
by defendant in error, who was a son of deceased. The claim 
was based on services rendered by the claimant for deceased, 
extending through a space of several years, after he arrived 
at 21 years of age. He claims that the labor was performed 
under an implied promise of payment for the labor. 

On a trial in the probate court, a judgment was rendered 
against claimant, when he appealed to the circuit court of the 
county, and, on a trial in that court, the jury found a verdict 
in his favor for $1275. After overruling a motion for a new 
trial, the court below rendered a judgment on the verdict, 
from which an appeal is prosecuted to this court, and errors 
assigned. 

It is not claimed that there was any special agreement, at 
any time during the 23 years appellee claims to have labored 
for his father, that he should be paid for his services. It 
appears that he remained on the farm, and worked as hired 
hands usually do, and, in addition, marketed the surplus pro- 
duce, and took charge of the management of the place. He 
seems to have been industrious, and faithful to the interests 
of the favher and family. It in fact was on his labor mainlv 
the family had to depend for support. Again, the father wa& 
much involved, and the farm was relieved from incumbrance 
through the labor and efforts of defendant in error, and thus 
preserved from sale; as the father admitted that had it not 
been for defendant in error, he would have had no home. 

The other sons left their father as fast as they became of 
age, and have never assisted their father to any extent, but 
have left the entire burthen upon defendant in error of man- 
aging the farm, supporting the family and paying the mort- 
gage upon the farm, with such assistance as the father, at his 
advanced age, could render; and for all of this there is no 



108 Freeman et al. Admrs. i-. Freeman. [Sept. T., 

Opinion of the Court. 

pretense that defendant in error ever received any compensa- 
tion beyond his board, lodging, clothing of the plainest char- 
acter, and a small amount of spending money. Michael, on 
the other hand, on arriving at age, left his father, who assisted 
him in purchasing a farm. Nicholas, when he became of age, 
left home, and learned a trade, and has never returned to live 
with his father. All of the daughters but one married, and 
have remained at their own homes, defendant and his sister 
only remaining at home to care for their aged parents. 

After defendant in error had left home, and gone to Rock- 
ford to work, he was prevailed upon by his father to return 
home and assist him on the farm. On what precise under- 
standing this arrangement was made, does not appear, but 
can only be inferred from circumstances. On several occa- 
sions, the father said he intended to will the farm to defend- 
ant in error, as he had stood by him; and he said to Haydon 
and Solon, but a few weeks before his death, and at a time 
when he sent for the former to draw his will, that he intended 
"to leave the farm to James, and the personal property he 
was going to divide between his daughter Kate and his wife; 
said he owed some debts, and the personal property would 
])ay oiF some parties he owed." Solon, who was present at 
this conversation, states that he spoke of making the disposi- 
tion of his j)roperty as testified to by Haydon; and further 
states that intestate said that if it liail not been for James, he 
would not have had a home, and he would not '' have the sin 
on his soul to do anything else." 

It is clear, beyond doubt, that it was the intention of in- 
testate to have willed the farm to defendant in error. He 
sent for Haydon to so draw his will, and he was only pre- 
vented at that time from carrying out his purpose for the 
want of a form to enable Haydon to draw his will. He, at 
the time, said that so soon as he recovered he would go to 
Elgin and have it drawn; and had he not been accidentally 
killed, he would, in all probability, have so executed a will. 



1872.] Freeman et ah Admrs. v. Freeman. 109 

Opinion of the Court. 

There is no pretense that defendant in error was ever paid, 
or received, anything for his labor, during this long period, 
beyond his board, lodging, cheap, plain clothing, costing, as 
the witnesses say, about $30 a year, and a small sum of spend- 
ing money. We can not but presume that he expected pay, 
or compensation in some manner, for these services. He, like 
his brothers, left to work for himself, but was induced to re- 
turn and assist his father. Being then considerably more 
than 21 years of age, we can only infer that he left to do and 
act for himself. Prior to that time, he, like his brothers, had 
remained at home, and there is nothing to show that he or 
they, up to that time, expected compensation for the services 
they were rendering; but the presumption is changed when 
he had left to act for himself, and was again induced to re- 
turn. After leaving, the presumption arises that he thence- 
forth intended to labor and accumulate property for himself; 
and when he returned, at the solicitation of the father, it is 
but a reasonable presumption that the father intended to pay, 
and he to receive pay, for his labor, either in money or by a 
devise in his father's will ; and, as the father said to several 
persons, at different times, that he intended to will the farm 
to defendant in error, we may reasonably presume that such 
was the agreement or understanding between them. 

He remained after becoming of age, nearly 23 years, and 
until he was near 44 years old, and 14 years after his brothers 
left and had set up for themselves: and whilst filial affection 
no doubt entered into the inducement to remain, we can 
hardly presume that he intended to give all of his labor and 
earnings to his father, simply that it might be distributed, 
at his death, equally amongst his children, he only get- 
ting one-sixth part. He had, as the father said, preserved 
the property for a home for his parents, in their declining 
years. In such a case, equity and a sense of justice appeal 
strongly to our nature to act upon the principle that the 
" laborer is worthy of his hire ;" and that justice and right may 
not be perverted, the jury were warranted in acting upon 



110 Freeman et al. Admrs. v. Freeman. [Sept. T., 

Opinion of the Court. 

slight preponderating evidence, tending to show an under- 
standing that defendant in error was to receive compensation 
for his labor; and we are clearly of opinion that the evidence 
preponderates, slightly it may be, but still in favor of the 
finding of the jury, and we have no disposition to disturb 
*he verdict. 

The statute of limitations having been interposed, defend- 
ant in error could only recover for five years next before pre- 
senting his claim, deducting the time that elapsed between the 
death of his father and the day fixed by the administrator for 
the adjustment of claims against the estate. 

Then, does the evidence sustain the amount found by the 
jury? We think it does. The witnesses fixed the yearly value 
of his services, after the commencement of the war, variously 
from ^175 to $288; one witness fixing it at $23 or §24 per 
month; another at $16, $17 or $18 per month. From this 
evidence, the jury were warranted in finding that $255 a year, 
with board and clothing, was onlv a reasonable compensa- 
tion ; but even if a less sum be allowed, with six per cent 
after due, it would produce the amount found by the jury. 
Considered in any light that is reasonable, we regard the evi- 
dence as fully warranting the amount the jury have found. 

We perceive no error in the admission of evidence, nor do 
we see, when all of the instructions are considered, that there 
was any misdirection of the jury. They fairly presented the 
law of the case, and we see that all that was pro])or in the 
refused instructions was given in others. 

We, after a careful examination of the record, fail to find 
any error that could have prejudiced plaintifis in error, and 
the judgment of the court below must be atlirmcd. 

Judgment affirmed. 



1872.J HoMF. Ixs. Co. OF New York v. Heck. Ill 

Syllabus. 



The Home Insurance Company of New Yoek 



John Heck. 

1. Insueance — right to cancel policy. Where a policy of insurance- 
against fire provided that the insurers might cancel the same on notice to 
the assured and a return of the unearned premium, it seems the mere fact 
that the property insured was in greater danger of fire when the offer was 
made to refund the premium than when the policy was issued, would not 
prevent the company from rescinding. 

2. But an insurer against fire can not, when the fire is approaching the 
property insured, under such a clause, cancel the policy; and when the 
clanger is threatening and imminent from an approaching fire, the right 
to terminate the policy upon notice will not depend upon the intentions or 
good faith with which the agent of the insurer acts. And the fact that the 
property was destroyed by fire coming from a different quarter than that 
which caused apprehension at the time of giving notice of a cancellation 
of the policy, will make no difference, if the danger from that quarter was 
imminent at the time. 

3. Same — instruction. In such a case as this, an instruction that, if the 
agent of the company, upon examining the wood described in the policy, 
and the manner in which it was being cared for, honestly came to the con- 
clusion that it was not being protected against the fires then burning in the 
surrounding clearings and forests, with that degree of care which a man of 
ordinary prudence and caution would exhibit in the protection of his own 
propertj^ under similar circumstances, and that in consequence of such fact, 
there was danger that the wood would be destroyed by said fires, then the 
agent was justified, for such reason, in terminating the policy by giving 
notice, etc., was held to have been properly refused as misleading, by taking 
from the jury all consideration of the facts existing at the time the fire was 
raging, and placing the right to cancel the policy upon the honest belief 
of the agent that the wood was not properly cared for. 

4. Removal op cause to U. S. court — hill of exceptions necessary. 
Where the petition and affidavit for the transfer of a pending suit from the 
State to the United States court, are not made a part of the record by a bill 
of exceptions, this court can not regard them. 

5. Sale — when title passes to vendee. Where a part}", under his contract 
with a railroad company for the sale of wood, hauled and piled the same 
along the track of the road, but no one had received the same, and the com- 
pany, when it needed wood, measured and took such quantity as it saw fit 



112 Home Ixs. Co. of New York v. Heck. [Sept. T., 

Opinion of the Court. 

from such pile, or that of others, and the agent only reported such as was 
tnus measured and taken, and gave vouchers therefor : ffeld, that the title 
«o such wood not measured and accepted did not vest in the company, but 
remained in the party furnishing the same; and when a pile was broken 
and a quantity taken from it and measured to the companj-, that specific 
quantity belonged to the company, and nothing more. 

Appeal from the Circuit Court of Cook couuty ; the Hon. 
Henry Booth, Judge, presiding. 

Messrs. Storrs & VanArman, for the appellant. 

Mr. O. B. Sansum, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court: 

This was an action of assumpsit, in the Cook circuit court, 
on a policy of insurance written by the Home Insurance 
Company of New York, on the 3d day of October, 1871, on 
a quantity of cord wood, cut, corded and piled by the plain- 
tiff on the line of the Pittsburgh, Cincinnati and St. Louis 
railroad, in the State of Indiana. 

The defense was, that the insurance company had notified 
the assured of a cancellation of the policy, as authorized by 
the terras of the policy. 

The cause was tried by a jury, and resulted in a verdict for 
the plaintiff. A motion for a new trial having been overruled, 
there was judgment on the verdict. To reverse this judg- 
ment the defendant appeals. 

The first point made by appellant is the refusal of the court 
to transfer the cause, on the affidavit of the defendant, to the 
United States court, in pursuance of the act of Congress of 
March 2, 1867.- 

The petition and affidavit are not made a part of the record 
by bill of exceptions, consequently this court can not regard 
them. 

Appellant raises several questions upon the rulings of the 
court upon the instructions, and first, appellant complains that 
the plaintiff's first instruction was erroneous, and should not 
have been given. 



1872.] Home Ins. Co. of New Yoek v. Heck. 113 

Opinion of the Court. 
That instruction is as follows : 

" Whether defendant had the right to cancel the policy iu 
suit depends upon the condition, with reference to danger of 
fire, in which the wood was in at the time defendant's agent, 
E-ussell, notified the witness Lane that he would cancel said 
policy. 

"If, at that time, the wood was in greater danger of fire 
than it was on the third day of October, 1871, when the con- 
tract was made, then defendant had not the right to rescind 
the contract and cancel the policy ; but if it was in no greater 
danger of fire on Saturday than it was when the contract was 
made, then the defendant had the right to rescind. Whether 
it was or was not in greater danger at that time, is a question 
for the jury to determine. 

'' Although you should find that at the time defendant's 
agent, Russell, notified the witness Lane that he would can- 
cel the policy, the wood was not then in greater danger from 
fire, still the defendant is not entitled to treat the policy as 
canceled, unless the premium to be returned to plaintiff was 
actually tendered, that is, shown to plaintiff, or an agent 
authorized to receive it for him, unless the actual tender or 
showing of the money was distinctly waived by the plaintiff 
or such agent. 

" And upon the question of tender, the burden is upon the 
defendant to establish that fact by evidence preponderating in 
its favor; and, if the evidence is equally balanced upon that 
point, you must find that the policy was not canceled.'' 

It is of the first two clauses of this instruction appellants 
complain. They contend that the right to cancel the policy 
did not depend upon the condition in which the wood was at 
the time of the notice of cancellation. 

Taking the two clauses together as the instruction, it asserts 
this principle of law: If the wood insured was in greater dan- 
ger of fire when the offer to refund the premium was made, 
8— 65th III. 



114 Home Ixs. Co. of New York v. Heck. [Sept.T., 

Opinion of the Court. 

than it was when the policy was issued, the company could 
not rescind. 

We think this is laying down the law too broadly, for, by 
the terms of the policy, the insurer had a right to rescind, on 
notice and a return of the unearned ])renuum. 

It can not be claimed, however, that an insurer against fire 
can, when the fire is approaching tlie property insured, cancel 
the policy. This would be acting in bad faith, and would not 
be justified by the law of the contract. Insurance is a con- 
tract of indemnity, the basis of which is, or ought to be, good 
faith on both sides. Of what avail would it be, to take a 
policy against fire, to jiermit its cancellation when the fire is 
approaching? 

Appellants also conij)lain that the court refused to give the 
first, second and fourth instructions asked by them. 

The first is as follows: 

"The jury are instructed that, by the terms of the policy 
of insurance, the defendant had, at any time before the loss 
or danger of the property insured, the right to terminate its 
liability by giving notice thereof to the plaintiff, and by the 
repayment of the premium. If, therefore, the jury believe, 
from the evidence in the case, that during the life of the 
policy, and before the loss had occurred, the defendant, through 
its agent, in good faitli, notified the plaintiff, or its agent, of 
its intention to terminate and cancel the jiolicy, and returned, 
or offered to return the premium, then the verdict must be for 
the defendant." 

The objection to this instruction is obvious. It makes the 
right of cancellation depend uj)on an intention entertained by 
the agent, in good faith, to cancel the policy. It leaves out 
of view tiireatening and imminent danger w'hich may envi- 
ron tiie insured j)ropcrty. As appellant's counsel remark in 
another part of their brief, "No court would permit an insu- 
rance company to declare a policy upon a certain building can- 
celled when the adjoining building was in flames." 



» 



1872.] Home Ins. Co. of New York v. Heck. 115 

Opinion of the Court. 

The jury are required by this instruction — the second clause 
of it — to consider, not the circumstances surrounding the 
property insured, but only the good faith with which the agent 
may have given the notice of cancellation. 

The next instruction refused is as follows : 

''The jury are instructed that, if they believe, from the 
evidence in the case, that the wood in question was destroyed 
by fire coming from an entirely different direction, or from a 
different source from that from which danger was apprehended 
at 'the time the notice was given of the termination of the 
policy, then the defendant had the right to terminate the 
policy by giving notice thereof to the plaintiff or his agent, 
and by refunding, or offering to refund, the premium paid." 

This instruction is coupled in the argument of appellant's 
counsel with the following : 

"The law will not presume, and the jury, in the absence 
of any evidence in the case, will not be justified in presum- 
ing, that an attempt to cancel the policy in question, and an 
offer to return the premium paid thereon, was made in bad 
faith. If the jury believe, from the evidence in this case, 
that Mr. Russell, acting as the agent of the defendant, on the 
fifth day of October, 1871, upon examining the wood de- 
scribed in the policy, and the manner in which it was being 
cared for, honestly came to the conclusion that it was not be- 
ing protected against the fires then burning in the surround- 
ing clearings and forests, with that degree of care which a 
man of ordinary prudence and caution would exhibit in the 
protection of his own property under similar circumstances; 
and that, in consequence of such want of ordinary prudence 
and caution, there was danger that said wood would be de- 
stroyed by said fires, then the jury are instructed that he 
would be justified, for that reason, in terminating the policy 
by giving notice of the fact to the plaintiff, or his agent, and 
returning or offering to return the premium." 



116 Home Ixs. Co. of New York r. Heck. [Sept. T., 

Opinion of the Court. 

In regard to the first of these instructions, if there was an 
impending fire from a quarter different from the one which 
first caused apprehension, the insurer would have no right to 
cancel the policy. It would be an act done in the face of a 
threatened and approaching danger, and which the insurers 
Avere not competent to do. Such a right would render poli- 
cies of insurance valueless. 

The other instruction takes away from the jury all consid- 
eration of the facts existing at the time the fire was raging, 
and places the right to cancel the policy solely upon the hon- 
est belief of Russell that the wood was not properly cared for. 
It was well calculated to mislead the jury, and to fix their at- 
tention upon the single fact of the honest purpose of Russell. 

We think the court properly refused these instructions. 

Another point of importance is made by appellant, and 
that is, as to the ownership of this property. 

Appellant contends it was the property of the railroad com- 
pany. If so, appellee has no right to recover of appellant. 

What are the facts? 

The wood was cut by appellee on his own land, hauled to 
the line of the Pittsburgh, Cincinnati and St. Louis railroad, 
corded and piled at Kokomo, a station on that road, and he 
testifies it was his wood when insured. 

William Jones testified that appellee employed him to watch 
the wood, the day it was insured; watched it until it was 
burned. 

D. D. Rudolph, the fuel agent of this railroad, testifies he 
knows when Heck had a lot of wood ; knows Avhen it was 
burned ; took account of and measured the place Avhere the 
wood had been, to ascertain how much had been burned; 
measured wood for TIeck on the same ground three or four 
times before; this wood was gotten out by Heck for the use 
of the railroad company ; took out wood each month; there 
was other wood besides Heck's there, some of which Avas de- 
stroyed; the railroad company had 1200 cords destroyed ; ver- 
bal contract with Heck made in 1868; Heck was to delive»* 



1872.] Home Ins. Co. of New Yoek v. Heck. 117 

Opinion of the Court. 

wood on the Hue of the railroad between Kokorao and Gal- 
veston ; that was part of the contract, and witness was to pay 
so much for it; measured it when it was taken out; was to 
measure it and send vouchers to the company; the wood, when 
delivered, was not under the control of the company; we could 
take it Avhen we chose, without saying a word to Heck; we did 
not exercise any control over it until we received it; the wood 
that was burned had been there a year; they were hauling all 
the time, and we taking it away, from any pile that suited us; 
it was not delivered until we received it; we received it when 
measured and marked; had never measured this wood; meas- 
ured it after it was burned, by order of the superintendent ; 
we had the right to take any of the wood, when piled, or all, 
if we wanted it; as soon as it was racked and piled we could 
take it and haul it off' whenever we pleased ; we had been 
taking and using the wood as we wanted it ever since Heck 
commenced delivering, in 1868; had a habit of putting on 
the wood the names of the men who delivered it, when we 
wanted it ; when witness measured wood he made a voucher 
and sent it to the general office, and it was paid in twenty to 
sixty days time; the delivery was made by Heck to the rail- 
road company when wood was measured ; we never paid for 
the wood that w^as burned. 

We think this testimony most conclusively settles the ques- 
tion of ownership, and the trouble has arisen from a misuse 
of the Avord "delivered." It is very evident the wood was 
the property of appellee when cut and hauled and piled at 
Kokomo. As a mass, it was his. It was deposited, not de- 
livered, on the line of the railroad for the convenience of the 
road, not delivered to them as their property, for there was 
no one present to accept it. It was delivered only in such 
quantities as the road wanted, and the quantity was measured 
to them from any pile the company or its agent might se- 
lect. 

Will it be pretended that the railroad company could main- 
tain trover for any one of these piles of wood, it not having 



118 Home Ins. Co. of Xew York i-. Heck. [Sept. T., 

Opinion of the Court. 

been measured to them and received by them? No one will 
so insist. 

As unmeasured piles, as these were, they were the property 
of appellee. AVhen a pile was broken in upon, and a quantity 
taken from it and measured to the company, that specific 
quantity belonged to the railroad company, and nothing more. 

Suppose, after Heck had piled the wood, the company did 
not choose to provide their fuel from any one of his piles? 
AVhat then ? Whose wood would it be under the contract tes- 
tified to by Rudolph, their fuel agent? Certainly not that of 
the company. 

\\ ere the company under an engagement to take all the 
wood Heck deposited there, and they declined doing so, 
Heck's remedy would be on the contract, and he could recover 
damages for its breach, but the title to the wood would re- 
main in Heck. 

There is not, in our judgment, a particle of proof to estab- 
lish title in these piles of wood, covered by this policy, in the 
railroad company. 

In this connection, appellant complains that instruction 
eleven, asked by it, was not given. The instruction is as fol- 
lows : 

" 11. If the jury believe, from the evidence in this case, 
that, before the issuance of the policy in question, the plain- 
tiff' had entered into an agreement with the railroad company, 
by which he hud agreed to sell to them a quantity of wood at 
a certain fixed j)ric(' per cord, to be juled and delivered on the 
line of said railroad, between Kokomo and (ilalveston ; that 
in ])ursuancc of such agreement the wood in question was 
piled and corded on the line of said road, and delivered to 
said railroad company; that the said railroad company, by 
the terms of such agreement, had the right to take such wood 
at such times and in such quantities as it saw fit. and agreed 
to measure the same when taken, and, within a certain stipu- 
lated time thereafter, pay for the same; then the jury are 



1872.] Home Ins. Co. of New York v. Heck. 119 

Opinion of tlie Court. 

instructed that the title to all said wood thus piled and deliv- 
ered on the line of said railroad passed to said railroad com- 
pany ; that said company is liable to the plaintiff therefor, 
and the verdict in this case must be for the defendant." 

This instruction might have been given without any preju- 
dice to appellee's case, had the court modified it by telling the 
jury what constituted a delivery, and that there was no evi- 
dence of a delivery of the wood in cords or piles. But aa 
directing the attention of the jury to the ownership of the 
wood, that had been done by appellant's fourth and fifth in- 
structions, particularly the fifth, which is as follows : 

"If the jury believe, from the evidence in the case, that, 
before the 8th day of October, 1871, the wood in question had 
been actually sold by the plaintiff to the railroad company, 
and that plaintiff had ceased to have any interest in it, then 
the verdict must be for the defendant." 

To decide this question under this instruction, the jury 
must have taken into consideration all the elements contained 
in the eleventh instruction, which was refused. 

It is idle to pretend there was a sale and delivery of these 
different piles of w^ood to the railroad company. They were 
always the property of appellee. Appellant took a risk on 
them at a high premium, and it ought to be held to a strict 
accountability. 

Every exertion was made by appellee to save his property 
from the flames, but unavailingly. Appellant must pay its 
insured value. 

Although appellee's first instruction is faulty, being too 
broad in its scope, yet the jury could not be misled by it, and 
the merits being so clearly with appellee, we would not re- 
verse for this error. 

Justice has been done, and the judgment must be affirmed. 

Judgment aj/irmed. 



120 T. P. & W. R. W. Co. V. CuRTENius. [Sept. T., 

Opinion of the Court. 

The Toledo, Peokia & Warsaw Railway Co. 

V. 

Antoinette T. Curtenius. 



1. DowEK — advising and consenting to sale does not estop widow from 
claiming. Where parties purchased the estate of minor heirs at a guardian's 
sale made under an order of court, upon the assurance that they were get- 
ting a perfect title, such sale being made by the advice and consent of the 
■widow, who was entitled to dower in the same, and paid the full value of 
the land without any incumbrance : Held, that the widow was not estopped 
from asserting her claim for dower, by her consenting to and advising such 
sale, there being no pretense of selling her interest; and that she was not 
bound to seek her dower interest out of the purchase money. 

2. Dower — assessment of damages on bill for. Where the premises of 
which the widow seeks to be endowed are not susceptible of division, the 
same jury which assesses the yearly value of the dower, must also assess 
the damages which the dowress is entitled to from the date of her 
demand down to the time of the verdict. Where the jury assessed the yearlj' 
value only, and the court decreed damages at the same yearly rate from 
the time of the demand, it was held to be erroneous. 

Appeal from the Circuit Court of Peoria county; the 
Hon. Sabin D. Puterbaugh, Judge, presiding. 

Messrs. liiiYAN & Cochran, for the appellant. 

Messrs. McCulloch ct Stevens, for the appellee. 

Mr. Ju.stice Scott delivered the opinion of the Court: 

It is conceded that appellee is entitled to dower in the 
premises described in the petition, unles.s she is in some way 
barred from asserting the claim as against the appellant. 

The defen.se relied on is, tliat the appellee is estopped from 
claiming dower in tiie j)romises by reason of the fact that 
C-ruger, Secor ct C(>. .suppo.^cd at the time they purchased the 
interest of the heirs at the iiuardian's sale, under a decree of 



1872.] T. P. & W. R. W. Co. v. Curtenius. 121 

Opinion of the Court. 

court, in pursuance of an agreement previously made, that 
they were getting a perfect title, and that such sale was made 
by the advice and consent of appellee. But if she is not so 
estopped, it is insisted that she ought to be required to prose- 
cute it against the money realized from the sale, now in the 
hands of the heirs. 

It is insisted that this is pre-eminently a case strieti juris. 
Let it be conceded. Upon what principle, then, is the de- 
mandant to be barred of her right of dower? 

It does not appear that she has ever released her dower in 
any manner known to the law, nor has it been barred by any 
statute of limitations. If it is lost, or her right has been 
cut oif, it must be in some way without her consent, for she 
has never voluntarily relinquished it. 

It may be conceded that the appellant paid full price, even 
its extreme value, for the interest of the heirs, and it may be 
true that Cruger, Secor & Co. may have thought they Avere 
piirchasing the entire title. In all the negotiations in regard 
to the sale, not one word was said about the dower interest. 
The guardian could not and did not pretend to sell it. 

It is intimated that Cruger, Secor & Co. did not know of 
the dower interest at the time of the purchase. They Avere 
bound to know it. They knew that they were purchasing 
the interest of minor heirs in the estate under an order of 
court, and it was their plain duty to inquire whether their 
mother was living, and what interests, if any, she had in the 
premises. If they failed to do so, it was at their peril. It 
can not be said that they were ignorant of her existence and 
place of residence, for they say that she advised and consented 
to the sale. They bargained only for the interest of the heirs 
in the lands, and that, it is conceded, they got. 

It is said that because the appellee advised and consented 
to the sale, for that reason she ought to be estopped from 
asserting any claim to dower in the premises as against the 
appellant. 



122 T. P. & W. R. W. Co. r. Curtenius. [Sept. T., 

Opinion of the Court, 

No reason is perceived why slie had not a right to be con- 
sulted and to give her ailvice in the matter. The interest of 
her minor children in the esfate of their father was about to 
be sold, and it was eminently proper that she should be con- 
sulted. Xo one was proposing to sell her life interest in the 
estate. Had the proposition been to sell her dower with the 
fee, then it would have been her duty to have asserted her 
rights, or have been equitably estopped. Such was not the 
proposition, and no mention w'as made of her interest. 

Crnger, Secor & Co. knew that appellee was living, and 
her place of residence; that her husband had died seized of 
the estate which thev were about to purchase of his heirs, and 
it was their duty to inquire whether she had released her 
dower, and if they did not, it will be presumed they jmr- 
chased the fee subject to the incumbrance. 

It will not do to say that the appellant, or Cruger, Secor 
& Co. did not know that appellee had dower in all the lands 
of which her husband died seized, unless it had been released 
in some legal form. In making the purchase, therefore, if 
they did not bargain for it, we must presume they pur- 
chased the fee of the estate subject to the dower incumbrance. 

It is provided by thestatute that no widow who shall, as exec- 
utrix or administratrix, sell and convey, by order of court, real 
estate of her husl)and, in which she shall be entitled to dower, 
shall be deemed to relintjuish her right of dower therein by 
reason of such conveyance, unless her relinquisliment sliall 
be specified in such deed or conveyance. It would be a very 
harsh rule to adopt, that because the dowress'knew of and 
consented to, and even advised the sale of estate belonging to 
her minor children for their maintenance or otherwise, she 
would thereby be estopped from asserting her claim to dower 
as against the purchaser. Stich a rule would be incompatible 
with all legislation on that subject and would be most inequit- 
able. 

The authorities cited by counsel on the doctrine of estoppels 
in jjuis are not applicable to the facts in the case at bar, and 



1872. ] T. P. & W. K. W. Co. v. Curtenius. 123- 

Opinion of the Court. 

it is not deemed necessary to review them. In no view of 
the case is the appellee estopped by any act on her part from 
asserting her right of dower. Nor do we think she is com- 
pelled to prosecute her claim as against the money realized 
from the sale. That was the price the grantees agreed to pay 
the heirs for their interest in the estate. The guardian only 
professed to sell the interest of the heirs in the fee in the 
estate, and did, in fact, sell nothing more, and the amount 
realized ought not to be reduced by deducting therefrom the 
value of the dower. The purchase was subject to the dower, 
and the estate itself is chargeable. It seems to us that this 
proposition is so plain that it need not be elaborated. 

The only question in the case about which we have had 
any doubt is, whether the court did not err in rendering a 
decree for the reasonable damages sustained after demand,^ 
when the amount had not been found by a jury. The ques- 
tion is not free from difficulty, but we are inclined to hold 
that there was error in this particular. 

There can be no doubt that under the 26th section of the 
dower act R. S. 1845, p. 198, when the commissioners have 
assigned dower by metes and bounds the court, on the approval 
of that report, may assess the damages which the demandant 
would sustain after demand. Either party, however, would 
have the right to have the question submitted to a jury. 

The difficulty lies in the construction of the 28th section. 
That section seems to provide that where the commissioners 
report that the estate is not susceptible of division without 
great injury thereto, it is imperative that the same jury 
which shall be called to assess the yearly value of the dower 
to be paid by the party having the next estate of freehold or 
inheritance, shall also assess the damages which the dowress 
may have sustained from the date of the demand down to the 
time of the verdict. 

The jury in this case simply found the yearly value of the 
dower, and the court assessed the damages sustained, and 
rendered a decree accordingly. This was irregular. It was 



124 Board of Trustees, etc. v. Davison et ah [Sept. T., 

Syllabus. 

the duty of the jury, and they should have been so instructed, 
not only to find the yearly value of the dower, but also the 
amount of damages, if any, and upon their finding the court 
could properly have rendered a decree. 

The yearly value of the dower as found by the jury in this 
instance was only the amount the court should decree 
to be paid to the dowress on a certain day named, and 
annually thereafter during her natural life. It would 
constitute no just basis for estimating the damages from the 
date of the demand to the time of the verdict. The premises 
mav have been worth more or less rental value during the 
previous years, and the true construction of the statute seems 
to be in all such cases that the questions of the yearly value 
and the damages should both be submitted to the same jury 

In this view of the law, the court proceeded erroneously in 
making tiie assessment of damages, and the decree must be 
reversed and the cause remanded. 

Decree reversed. 



Thk Board of Trustees, etc. 

V. 

Electa S. Davison et al. 

1. AcKNOWi.KDOMKNT OF DEED — as to married women. The cerlificate 
of the ackuowk'ilgmont of a ilet-d by husbauil and wife, the real estate 
being tliat of tiie wife, was, in substance, the following: That A (the wife) 
and B (the husband) were personally known lo the offlcer as the real per- 
sons whose names were subscribed to the instrument; that the said A 
appeared before him and acknowledged the execution thereof as her free 
act and deed, for the uses and purposes therein mentioned ; and that the 
eaid B, husband of the said A, being examined separate and apart, and 



1872.] Board of Trustees, etc. v. Davison et al. 125 
Opinion of the Court. 

out cif the hearing of his said wife, and the contents being made known 
and fully explained to him, acknowledged said instrument to he his free 
act and deed, and that he executed the same, and relinquished his dower, 
etc., voluntarily and freely, without the compulsion of his wife, and did 
not wish to retract : Held, that the acknowledgment was wanting in all 
the substantial requirements of the statute respecting the deeds of married 
women, and for such defects the deed was absolutely void as to the wife. 

2. Mistake — power of a court of equity to reform. A court of equity 
will not correct mistakes in or reform the deeds of married women ; but 
it may as to the husband who joins in the execution, and then it will 
affect his interest in the lands only. 

3. School ftind — power to fm-eclose mortgage lefore tlie debt is due, for 
breach of conditions. The school law, which provides that where the board 
of trustees shall require additional security for money loaned, and the 
same is not given, the treasurer shall bring suit to recover the principal 
and all interest due on the obligation, enters into and forms a part of every 
contract for a loan of school funds made under such law ; and where such 
additional security is demanded, and not given, the whole debt matures, 
and if the debt is secured by mortgage, the same may be foreclosed in 
equity, the plaintifi' not being confined to the remedy bj' an action at law. 

Writ op Error to the Circuit Court of Woodford county; 
the Hon. S. L. Richmond, Judge, presiding. 

Mr. Martin L. Newell, for the plaintiffs in error. 

Messrs. Bangs & Shaw, for the defendants in error. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was a bill in chancery, brought in the Woodford cir- 
cuit court, by plaintiifs in error, against defendants, to fore- 
close two mortgages upon real estate. The defendants were 
husband and wife. The mortgages were given to secure sepa- 
rate loans of school funds made to defendants by the township 
treasurer. The first mortgage was executed Dec. 16, 1867, to 
secure the sum of $400, payable in four years, M'ith interest. 
It was signed, sealed and acknowledged by both defendants, 
although the name of the husband nowhere appears in the 
body of the instrument. The acknowledgment was taken by 



126 Board of Trustees, ktc. v. Davison et al. [Sept. T.. 

Opinion of the Court. 

a justice of the peace, who certified that Electa S. Davison, 
who was personally known to him to be the real person whose 
name was subscribed to the foregoing instrument, appeared 
before him and acknowledged the execution thereof, as her 
free act and deed, for the purposes therein mentioned; and 
that said Ezra D. Davison, husband of said Electa S. Davison, 
personally known to him, etc., and being examined separate 
and apart, and out of the hearing of his said wife, and the 
contents being made known and fully explained to him, ac- 
knowledged said instrument to be his free act and deed; that 
he executed the same, and relinquished his dower, etc., volun- 
tarily and freely, without the compulsion of his wife, and did 
not wisli to retract. 

The statute, authorizing loans by the township treasurer, 
pre.scribes the form of the mortgage to be given as security, 
and declares that such mortgages shall be acknowledged and 
recorded as is required by law for other conveyances of real 
estate. Gross' Stat. p. 702. 

This acknowledgment is wanting in all the substantial 
requisites of the statute respecting deeds of married women, 
and for such defects, this deed was absolutely void as to the 
wife. Lindh'ij v. Smith, 46 111. 52-3. 

The other mortgage was executed July 22, 1868,bv defend- 
ants, to secure the re-payment of tiie sum of $800, in five 
years, with interest, and is properly acknowledged. 

The bill alleges, and seeks to correct, a mistake in the deed. 
A court of equity will not correct mistakes in or reform liie 
deeds of married women. Moulton et ux. v.Hiird, 20 111. 137. 

The bill in this case was filed before the sum secured by 
either mortgage was due by the efflux of time. The objection 
is made by defendants that although an action at law niigiit 
be maintained upon the covenants, or to recover the amount 
loaned, still a bill to foreclose the mortgage will not lie until 
the debt is due by lapse of time. To construe this statute 
upon whicii the.se questions arise, we must refer to some of its 
controlling provisions. The 57tli section (Gross' Stat. 701) 



1872.] Board of Trustees, etc. v. Davison et al. Ill 

Opinion of the Court 

precribes the terms upon which loans of such public funds 
should be made; and, amongst other things, it is provided 
that for all loans of sums over ^100 and for more than one 
year, security shall be given, by moi'tgage on unincumbered 
real estate, in value double the amount loaned, with a condi- 
tion that in case additional security shall at any time be re- 
quired, the same shall be given to the satisfaction of the board 
of trustees for the time being. 

The 58th section prescribes the form of the mortgage, con- 
taining a covenant by the grantor to comply with the require- 
ment to give additional security. 

The 59th section declares that " upon the breach of any 
condition or stipulation contained in said mortgage, an action 
may be maintained and damages recovered as upon other cov- 
enants." 

The 60th section declares that, "in all cases where the 
board of trustees shall require additional security for the pay- 
ment of money loaned and such security shall not be given, 
the township treasurer shall cause suit to be instituted for the 
recovery of the same, and all interest thereon to the date of 
the judgment: Provided, that proof be made of the said requi- 
sition." 

These several provisions enter into every contract of loan 
made under the statute, and constitute, so far as applicable, 
as much a part of the mortgage as if expressly incorporated 
into it. 

When these two sections are considered together, in con- 
nection Avith the other provision fixing the standard of secu- 
rity, it is very apparent that it was the intention of the 60th 
section to make the original debt become due, for all the pur- 
poses of any remedy for its collection, immediately upon 
failure to comply with the requirement to give additional 
security. The authority to require such additional security 
is given by statute, and the covenant contained in the mort- 
gage to comply vests the board of trustees with the discretion 
of determining; \vhen a case arises for the exercise of the 



128 Board of Trustees, etc. v. Davison et al. [Sept. T., 

Opinion of the Court. 

power, and unless it is exercised fraudulent!}^, or under such 
circumstances of abuse or oppression as amount to fraud, the 
propriety of the exercise can not be made a subject of inquiry 
in the courts. It appearing in this case that the requisition 
for additional security was made and not complied with, we 
are of opinion that a bill would lie to foreclose these mort- 
gages. There is no evidence in the record sufficient to justify 
the conclusion that the power to make the requisition was 
fraudulently exercised or abused. The defendants' answer 
avers that the legal title to the property mortgaged was 
wholly in the wife, and that the husband had no interest ex- 
cept such as he had as husband of a wife holding a separate 
estate. If this be so, it is perfectly clear that the security 
was far short of what the statute contemplated. The first 
mortgage was so defectively acknowledged as to be inopera- 
tive in respect to the estate of the wife; and the second, as 
appears by the bill, needed reforming in a material particular, 
which it is not competent to do, so far as the wife is con- 
cerned. 

Whatever obstacles there may be to relief as against the wife, 
we can see no reason why the first mortgage was not operative 
upon whatever interest the husband had in the land; and tlic 
second mortgage may be enforced against the interest of both 
defendants, unless there was some such mistake in the descrip- 
tion of the land or terms of the instrument as would prevent; 
in which case, a proper case being made, the instrument might 
be reformed as respects the husband, although not as to the 
wife. There was no evidence upon this point. The husband, 
by executing the first mortgage, became bound by the cove- 
nants therein contained. The words, "and I do hereby cove- 
nant," would apply to him as well as to his wife, who is 
named as sole grantor. 

Upon the whole case we are satisfied that the court below 
erred in dismissing the plaintiflf's' bill altogether. The decree 
must, therefore, be reversed, and the cause remanded for I'nr- 
ther proceedings not inconsistent with this opinion. 

Decree reversed 



1872.] Martin et at. v. Kobson. 129 

Syllabus. 



Margaret Martin et al. 

V. 

Janet Robson. 

1. Htjsb.otd and "WIFE — husband's liaMUty for Ms wife's torts. Since 
the passage of the acts of 1861 and 1869, relating to the rights of married 
women, the husband is not liable for the torts of his wife committed du- 
ring coverture, when he is not present, and in which he in no manner par- 
ticipated. 

2. Same — rights of husband as to her property. The effect of the pres- 
ent legislation is to change the common law rule, so that in this State the 
husband can not enjoy the rents and profits of his wife's real estate without 
her permission ; and he has no control over her separate personal property, 
except by her consent, and he can no longer interfere with her choses in 
action. 

3. Same — as to icife's earnings. The product of her earnings is the ex- 
clusive property of the wife. She alone can sue for and recover, and the 
husband can not release them. The right to her earnings also includes the 
right to appropriate her own time and labor in acquiring them. 

4. Same — duties and obligations. As the result of the marriage vow, 
and a part of the contract, the wife is still bound to love and cherish the 
husband, and to obej^ him in all reasonable demands, not inconsistent with 
the exercise of her legal rights ; to treat him with respect, and regard him 
at least as her equal ; and he is still bound to protect and maintain her, unless 
she should neglect wholly her marital duties, as imposed by the common 
law, or assume a position to prevent their performance, and thus deprive 
him of her society. These duties and obligations at common law were 
not the result of the arrangement of their property, but of the contract of 
marriage and the relation thereby created. 

5. Same — husband's liability for necessaries. If the husband, without 
justifiable cause, turns away his wife, he is bound for contracts for neces- 
saries suitable to her degree and estate. If they live together, and he will 
not supply her or the necessary means, she can pledge his credit for neces- 
saries strictly ; but if he provides for her, he is not bound by her contracts, 
unless made by his authority, or with his concurrence. 

6. Same — rights and powers of wife. As to the separate property of the 
wife, she is now the same as & feme sole. She need not join her husband 
with her in a suit to recover it, or for the trespass to it. She may even 
prosecute a suit against him for any unlawful interference with her prop- 
erly. 

9— 65th III. 



130 Martin et al. v. Robsox. [Sept. T., 

Opinion of the Court. 

7. Same — personal injury to wife. So the wife may sue alone for per- 
sonal injuries, and her husband can not, without her consent, release her 
claims for damages, as such right of action is her property. 

8. Same — wife may lease Tier real estate. The wife may now execute a 
valid lease of her separate real estate without joining her husband and 
without his consent, and she ma}^ be sued at law upon her contracts as to 
her separate property. 

Appeal from the Circuit Court of Marshall county; the 
Hon. Samuel L. Richmond, Judge, presiding. 

This was an action on the case, brought by the appellee 
against Margaret Martin and Jolin Martin, her husband, to 
recover for certain slanderous Avords spoken by Margaret Mar- 
tin of and concerning the appellee, imputing that the appellee 
was guilty of fornication. The cause was tried upon the dec- 
laration, and the plea of not guilty. Verdict for §2500, of 
which sum $1000 was remitted, and motion for a new trial 
overruled. 

Messrs. Bangs & Shaw, and Mr. R. F. Winslow, for the 
appellants. 

Messrs. Burns, Barnes & Ong, for the appellee. 

Mr. Justice Tmountox delivered the opinion of the Court : 

Since the passage of the acts of 1861 and 1869. (Session 
Laws of 1861, 143, and of 1869, 255,) is the husband liable 
for the torts of the wife duriug coverture, committed when 
he was not present, and in which he in no manner partici- 
pated ? 

Those statutes give to the wife, during coverture, the po1(> 
oontr<il of lier sej^arate estate and property acquired in good 
faith from anv jxm-sou other than her husband, and her own 
earnings for labor performed for any ]KM-son other than her 
husband or minor children, with the right to use and ]>ossess 
the projiertv and earnings, free from the control or interfer- 
ence of her husband. 



1872.] Martin et al. v. Eobson. 131 

Opinion of the Court. 

In determining the intent, object and effect of these enact- 
ments, it will be interesting to place, in juxtaposition, the 
rights and duties, liabilities and disabilities of husband and 
wife, incident to the marriage union, as they existed at com- 
mon law, and the changes made by the statute. 

At common law he had control, almost absolute, over her 
person ; was entitled, as the result of the marriage, to her ser- 
vices, and consequently to her earnings; to her goods and 
■chattels; had the right to reduce her choses in action to posses- 
sion, during her life; could collect and enjoy the rents and 
profits of her real estate; and thus had dominion over her 
property, and became the arbiter of her future. She was in 
a condition of complete dependence; could not contract in her 
own name ; was bound to obey him ; and her legal existence 
was merged in that of her husband, so that they were termed 
and regarded as one person in law. 

As a necessary consequence, he was liable for the debts of 
the wife dum sola, and for her torts and frauds committed 
during coverture. If they were done in his presence, or by his 
procurement, he alone was liable; otherwise they must be 
jointly sued. 

Now, he can not enjoy the profits of her real estate without 
her permission. He has no control over her separate personal 
property. It is not subject to his "disposal, control or inter- 
ference." Language could not be more explicit. All her 
separate property is "under her sole control, to be held, owned, 
possessed and enjoyed by her the same as though she was sole and 
umnarried." He has no right to use or dispose of a horse or 
a cow, without her consent. He can no longer interfere with 
her choses in action. They are under her sole control. The 
product of her labor is her exclusive property. She alone can 
sue for and enjoy it. Any suit for her earnings must be in 
her own name, and she may use and possess them free from 
the interference of her husband or his creditors. 

The language of the statute of 1869 is, "That a married 
■woman shall be entitled to receive, use and possess her own 



132 Martin e^ a?, v. Robson. [Sept. T., 

Opinion of the Court. 

earnings, and sue for the same in her own name, free from the 
interference of her husband." 

The words, " free from the interference of her husband," 
apply as well to the right to receive, n.se and possess, as to the 
right to sue for, her earnings. The right, therefore, to receive 
and use her own earnings, uncontrolled by the husband, is 
conferi'ed in express terms. The practical enjoyment of this 
right presupposes the right to appropriate her own time. The 
right to take and possess the wages of labor must be accom- 
panied with the right to labor. If the husband can control, 
then the statute has conferred a barren right. If the wife can 
still only acquire earnings with his consent, then the statute 
was wholly unnecessary, for she might have done this prior to 
its enactment. The clear intent of the statute is, not alone to 
give to the wife the right to accept and use her earnings, but 
the right to labor, and thus acquire them. 

The intention of the legislature to abrogate the common 
law rule, to a great degree, that husband and wife were one 
person, and to give to the latter the right to control her own 
time, to manage her separate property, and contract with ref- 
erence to it, is plainly indicated by these statutes. While 
they do not expressly repeal the common law rule, that the 
husband is liable for thp torts of the wife, they have made 
such modification of his rights and her disabilities, as wholly 
to remove the reason for the liability. 

The rights acquired by the husband by virtue of the mar- 
riage have almost all been, taken away ; and the disabilities 
of the wife have nearly all been removed. She now controls 
lior own estate entirely, except that, by construction of the 
courts, she can notconvey her real estate without her husband. 
This, however, is solely for her protection, and to prevent the 
squandering of the estate. He has now only a modified ten- 
ancy by the curtesy, dependent upon a contingency, and no 
estate vests during the life of the wife. This is rather a 
shadowy estate. It is an interest which may possibly ripen 
into something tangible in the uncertain future. Previous to 



1872.] Martin et al v. Eobson. 133 

Opinion of the Court. 

the act of 1861, it could be sold on execution against the hus- 
band; now, the wife has the sole control of her real estate 
during her life, and the husband has no interest until her 
death. She must sue alone for breach of covenant in a deed 
to her. This estate, at best, is now a bare possibility. Cole 
V. Van Riper, 44 111. 58 ; Beach v. 3Iiller, 51 ib. 206. 

A liability which has for its consideration rights conferred, 
should no longer exist when the consideration has failed. If 
the relations of husband and wife have been so changed as to 
deprive him of all right to her property, and to the control 
of her person and her time, every principle of right would be 
violated, to hold him still responsible for her conduct. If she 
is emancipated, he should no longer be enslaved. 

For the policy and wisdom of the legislation which has ef- 
fected a change so radical, the legislature alone is responsible. 
The courts must guard against a construction M'hich mis^ht 
prove mischievous, and result in a practical divorcement of 
man and wife, if such construction can be avoided. 

In Cole V. Va7i Riper, supra, this court said that the legis- 
lature never could have intended, by the enactment of 1861, 
to loosen the bonds of matrimony, or to enable the Avife, at 
pleasure, to effectuate a divorce a mensa et thoro, or to confer 
the power to restrict the husband to the use of a particular 
chair, or to forbid him to take a book from the library with- 
out her permission. We shall not insist that such unwifelike 
conduct can even be justified since the law of 1869. 

The inquiry is therefore pertinent, what is left of the nup- 
tial contract? What duties and obligations still exist? 

As the result of the marriage vow, and as a part of the con- 
tract, the wife is still bound to love and cherish the husband, 
and to obey him in all reasonable demands not inconsistent 
with the exercise of her legal rights ; to treat him with re- 
spect, and regard him at least as her equal; and he is still 
bound to protect and maintain her, unless she should neglect 
wholly her marital duties as imposed by the common law, or 



134 Martin et at. v. Eobson. [Sept. T., 

Opinion of the Court. 

assume a position to prevent their performance, and thus de- 
prive him of her society, mar the beauty of married life, and 
disregard the household good. 

These duties and obligations upon husband and wife were 
not the result of the arrangement of their property at com- 
mon law, but of the contract of marriage and the relation 
thereby created. By the marriage she became one of his fam- 
ily, and he was bound to provide her a home, and necessaries 
there but not elsewhere. He must furnish her with necessa- 
ries, from a principle of duty and justice. 2 Kent's Com. 
148. 

"The duties of the wife, while cohabiting with her husband, 
form the consideration of his liability for her necessaries.'' 
McCidchen v. JIcGahai/, 11 Johns. 281. This doctrine is ap- 
proved by Kent in his Commentaries, 2 Yol. 146. 

The argument urged to maintain the res})onsibility of the 
husband for the torts of the wile, because he may still be 
bound to provide necessaries, is not a})propriate. Upon the 
marriage, at common law, his assent to her contracts for neces- 
saries was presumed, upon proof of cohabitation. If she 
eloped, though not with an adulterer, the husband was not 
chargeable even for necessaries. But elopement did not re- 
lease him from liability for her debts dvm sola, or for her 
torts. 

The rule at common law, as to the liability for necessaries, 
is, if a man, without justifiable cau^e, turns away his wife, he 
is bound for her contracts for necessaries suitable to her de- 
gree and estate. If they live together, and he will not suj)- 
ply her, or the necessary means, she then can pledge his credit 
for necessaries strictly; but if he provides for her, he is not 
boiuul \)y her contracts, unless there is evidence to ])rove his 
assent. He is not bi'iiiul by her contracts unless they are 
made by his authority w with liis concurrence, except he 
makes no provision for her. Montague v. Benedict, 3 Barn. & 
Cress. 631; Montagxie v. Espinessc, 1 Car. & Payue, 502 ; At- 
kins V. Cuiii'ood, 7 Car. & Payne, 756. 



1872.] Martin et al. v. Eobsox. 135 

Opinion of the Court. 

The plain reason for the obligation was the cohabitation, or 
the right to enforce it, and the consequent right to her obedi- 
ence and services. 

Even though she lived separate from him, supported her 
children, and earned a salary, the party owing her had no 
right to pay her, after notice from the husband not to do so. 
He could, in such case, sue for and recover the salary. Glo- 
ver V. Proprietors of Drury Lane, 2 Chitty, 117. 

Now, how changed! Her earnings, except for services she 
may render to him and his minor children, are her exclusive 
property, whether living apart from or with him. 

No principle is better settled, at common law, than that the 
husband is not liable for necessaries furnished to the wife, if 
she leaves him without any fault on his part. But he was re- 
sponsible for her torts until a dissolution of the marriage, even 
in case of separation. 

Where the husband and wife lived apart, and she published 
a libel of a third person, he was held to be answerable, not- 
withstanding the separation. Head v. Briscol and Wife, 5 Car.. 
& Payne, 484. 

The foundation for the liability in the two cases is dif- 
ferent. In the one case it was based upon cohabitation, and 
the enjoyment of the society and services of the wife, as a 
necessary consequence. In the other case it rested more par- 
ticularly, if not exclusively, upon the fact that the husband 
became the absolute owner of her personal property, and had 
the right to receive the rents and profits of her real estate. 

It is also urged, as a reason for the continued liability of 
the husband for the torts of the wife, that this obligation was 
imposed upon him at common law, whether she was poor or 
wealthy, and that therefore the statutes have produced no dif- 
ferent rule. 

If she did not enrich him with property — if she did not 
endow him with gold — she endowed him with a nobler gift 
and a greater excellence. She enriched him with her society, 



136 Martin et al. v. Robson. [Sept.T., 

Opinion of tlie Court. 

advised and encouraged him as one who had no separate in- 
terests, and freely gave to him her time, industry and skill. 
As a means of paying her debts and damages for her torts, 
her counsel and earnings might be as important as her accu- 
mulated property. 

The distinction between the liability of th^ husband for the 
contracts of the wife before marriage, and for her torts during 
marriage, — as for slander uttei-ed by her alone, — is too dim to 
be easily seen. He was made liable for her debts at the pe- 
riod of marriage, because the law gave to him all her per- 
sonal estate in possession, and the power to recover her per- 
sonal property in action. Bright's Hus. & Wife, 2 Vol. p. 2. 

He was bound to pay her indebtedness because he adopted 
her and her circumstances together. Black. B. 1, 443. 

The law made him liable to the debts to which he took her 
subject, because he acquired an absolute interest in her per- 
sonal property, had the receipt of the rents and profits of her 
real estate during coverture, and was entitled to whatever ac- 
crued to her by her industry or otherwise, during the same 
period. Steph. Nisi Prius, Vol. 1, p. 726. 

The reason for the liability, according to some authori- 
ties, is that, by the marriage, the wife was deprived of the use 
and disposal of her property, and could acquire none by her 
industry, as her person and earnings belonged to the husband. 
Tyler on Infancy and Cov. sec. 216. 

The same author, after declaring the husband's liability for 
the debts and torts of the wife, says : " The reason assigned 
for such liabilities at common law is, that he was entitled to 
the rents and profits of tlie wife's real estate during coverture, 
and to the absolute dominion over her personal property in 
possession." Sec. 233. 

The common law was never guilty of the absurdity of im- 
posing obligations so onerous without conferring correspond- 
ing rights. Hence, besides the rights of property, the legal 
pre-eminence was exclusively vested in the husband. He was 



1872.] Martin et al. v. Robson. 137 

Opinion of the Court. 

answerable for her misbehavior, and hence had the right of 
restraint over her person. Black. B. 1, 444. 

Lord Kaimes, in his Sketches, says: "The man bears rule 
over his wife's person and conduct ; she bears rule over his 
inclinations ; he governs by law, she by persuasion." 

In the matter of Cochrane, 8 Dowl. P. C. 632, the wife was, 
upon the hearing of a writ of habeas corpus, restored to her 
husband upon the principle that she was under his guardian- 
ship, and that the law entitled him, "for the sake of both, to 
protect her from the danger of unrestrained intercourse with 
the world, by enforcing cohabitation and a common residence." 

So long as the husband was entitled to the property of the 
wife and to her industry, so long as he had power to direct 
and control her, and thus prevent her from the commission of 
torts, there was some reason for his liability. The reason has 
ceased. The ancient landmarks are gone. The maxims and 
authorities and adjudications of the past have faded away. 
The foundations hitherto deemed so essential for the preser- 
vation of the nuptial contract, and the maintenance of the 
marriage relation, are crumbling. The unity of husband and 
wife has been severed. They are now distinct persons, and 
may have separate legal estates, contracts, debts and injuries. 

To this conclusion have all the decisions of this court 
tended. So far as the separate personal property of the wife 
is concerned, she is now the same as a feme sole. She need 
not join her husband with her in a suit to recover it, or for 
the trespass to it, as her rights only are affected, and she must 
sue alone for any invasion of them. She may even prosecute 
a suit against her husband for any unlawful interference with 
her property, contrary to her wishes. Emerson v. Clayton, 
32 111.493.' 

The right of action for personal injuries to the wife is prop- 
erty. She may sue alone for the recovery of damages for such 
injuries, and the husband can not, without her consent, release 
them, a B. & Q. R. B. Co. v. Dunn, 52 111. 260. 



138 Martin et al. v. Kobson. [Sept. T., 

Opinion of the Court. 

In the same case it is said that she can maintain, in her own 
name, an action for slander of her character. If she alone is 
entitled to receive, and appropriate to her own use, damages 
recovered for slander of herself, she should answer for her 
slander of others. 

Until the law of 1869, this court adhered to the common 
law rule, that the husband was responsible for the debts of 
the wife contracted before marriage. It was repeatedly de- 
clared that the liability rested, not only upon the fact that the 
husband, upon the marriage, became the owner of the wife's 
personal property, when reduced to possession, and of a life 
estate in her realty, but upon the ground that he was entitled 
to the entire proceeds of her time and her labor, and that, 
notwithstanding the law of 1861, he was .still entitled to her 
earnings. Conner v. Berry, 46 111. 371 ; McMurtry v. Web- 
ster, 48 ib. 123. 

The last decision was made in 1868. Then followed the 
law of 1869. 

In the first adjudication made under it, it Avas held that, as 
she now owned separate property, and enjoyed her own earn- 
ings, she must pay the costs incurred in attempting to main- 
tain her rights. Musgrovew. Musgrove, 54 111. 186. 

In Howarth v. Warmscr, 55 111. 48, the husband was de- 
clared to be discharged from his former liability to pay the 
debts of the wife contracted before marriage, by force of the 
legislation under consideration. 

A married woman may now be sued at law upon her con- 
tracts as to her separate property. Cookson v. Toole, 59 III. 
515. 

She may now execute a valid lease of her separate real 
estate without joining her husband, and without his consent. 
Parent v. Callerand, 64 111. 97. 

So diverse are the rights and interests, the duties, obliga- 
tions and disabilities of husband and wife now, that it would be 
most unreasonable to hold him .still liable for the torts commit- 
ted without his presence and without his consent or approbation. 



1872.] Martin et al. v. Eobson. 139 

Opinion of the Court. 

If he is not bound to pay her debts, why should he be respon- 
sible for her torts ? When the ground-work is gone as to one, 
it is gone as to the other, and the structure of the past must 
fall before the innovations of the present. 

She is now, to a very great extent, independent of him, and 
is clothed with rights and powers ample for her own protection j 
and so far as her separate property is concerned, is responsible 
for her debts and contracts, with reference to it. They are 
not one, as heretofore. They are one in name, and are bound 
by solemn contract, sanctioned by both divine and human law, 
to mutual respect ; should be of the same household, and one 
in love and aifection. 

But a line has been drawn between them, distinct and inef- 
faceable, except by legislative power. His legal supremacy is 
gone, and the sceptre has departed from him. 

She, on the contrary, can have her separate estate; can con- 
tract with reference to it; can sue and be sued, at law, upon 
the contracts thus made; can sue, in her own name, for injury 
to her person and slander of her character, and can enjoy the 
fruits of her time and labor free from the control or interfer- 
ence of her husband. 

The chains of the past have been broken by the progression 
of the present, and she may now enter upon the stern conflicts 
of life untrammelled. She no longer clings to and depends 
upon man, but has the legal right and aspires to battle with 
him in the contests of the forum ; to outvie him in the heal- 
ing art ; to climb with him the steps of fame, and to share 
with him in every occupation. Her brain and hands and 
tongue are her own, and she should alone be responsible for 
slanders uttered by herself. 

Our opinion is, that the necessary operation of the statutes 
is to discharge the husband from his liability for the torts of 
the wife, during coverture, which he neither aided, advised 
nor countenanced. 

The judgment is reversed and the cause remanded. 

Judgment reversed. 



140 Maktin et al. v. Robson. [Sept. T., 

Dissenting opinion of Mr. Justice Sheldon. 

jNIr. Justice Sheldon, dis.senting: I do not assent to the 
judicial repeal of the old rule of the law, that the husband 
is liable for the torts of the Avife committed during coverture. 

The assumed foundation of the rule is not all removed yet. 
A part of it, to-wit, that whatever accrues to the wife by her 
labor belongs to the husband, for the mo.st part, yet remains. 
The act which entitles a married woman to her earnings, ex- 
pressly denies to her any right to compensation for any labor 
performed for her husband or minor children. 

Of this description chiefly are the services of married 
women ; any other are exceptional. 

As to the husband's right to the services of his wife being 
one of the assigned reasons of his liability for her acts and 
obligations, see 2 Bac. Abr. 33, title Baron & Feme (F); Ty- 
ler on Infancy and Coverture, 333. 

But are these a.ssumed reasons of the husband's liability, 
namely, his rights in the wife's property and to her labor, the 
sole ground of tiie liability? 

Blackstone lays it down tjiat, "By marriage, the husband 
and wife are one person in law. '^ * Upon this 

principle of a union of person in husband and wife depend 
almost all the legal rights, duties and disabilities that either of 
them acquire by the marriage." 1 Black. Com. 441-2. 

'' If the wife be indebted before marriage, the husband is 
bound afterwards to pay the debt, for he has adopted her and 
her circumstances togetiier." Id. 442-3. 

Because the legislature has seen fit to interfere with this 
unity of person, so far as to allow the wife the enjoyment of 
her separate property, and to have her earnings to a limited 
extent, it doe.s not follow that the courts should annul it in 
all other particulars. 

Were it a question before the body whose province it is to 
alter the law, reasons of ])ublic policy might suggest them- 
selves to the legislative mind, to let the rule making the hus- 
band answerable for his wife's misbehavior remain undis- 
turbed, as established in the wisdom of the common law. 



1872.] Maktin et al. v. Kobson. 341 

Dissenting opinion of Mr. Justice Sheldon. 

One remedy, which our law has provided for torts, is im- 
prisonment on execution. But a wife is not liable to be im- 
prisoned for a private wrong without her husband. 2 Kent's 
Com. 149; 3 Black. Com. 413; Reeve's Dom. Relations, 145. 
I This remedy, then, will be unavailing where a wife is a 
tortfeasor, if the husband be exempted from liability. 

As the acquisitions of the joint industry of husband and 
wife belong to the former, we may expect it to be the excep- 
tion, rather than the rule, where there will be found separate 
estate belonging to the wife, to be reached by execution. 

This will make the remedy, by recovery of damages by suit 
against the wife alone, of little worth. 

Thus the abrogation of the law in question leaves the party 
Avho may receive injuries at the hands of a married woman 
practically remediless. It will so be that she, in most instan- 
ces, may commit private wrongs with legal impunity, and 
wives will be made, as it were, licensed wrongdoers. A weak- 
ening effect will be produced in the respect of family govern- 
ment, which is a powerful aid to that of the State, in the 
maintenance of civil order. 

There will no longer be the motive of pecuniary interest on 
the part of the husband to induce him to exercise a salutary 
influence in promoting good conduct in the wife, and in re- 
straining her from the commission of wrongs. 

As bearing upon the subject in hand, the following remarks 
of Lord Chancellor Talbot, in the case of- Heard v. Stamford, 
3 Peere Williams, 410-11, are not unworthy of regard : "I do 
not see how anything less than an act of Parliament can alter 
the law. * * * jf the law, as it now stands, be 

thought inconvenient, it will be a good reason for the legisla- 
ture to alter it; but till that is done, what is law at present 
must take place." 

Enough of uncertainty is being brought into our laws by 
the regularly ordained law-making power in the exercise of 
its functions. The evil of the law's uncertainty is aggravated 



142 Case r. Ayers. [Sept. T., 

Syllabus. 

where the continuance of the ancient principles of the law is 
made dependent on mere judicial discretion. 

Mr. Justice Scott : I concur with Mr. Justice Sheldon. 

Mr. Justice Breese: I concur in the views expressed by 
Mr. Justice Sheldon. 



William M. Case 

V. 

John B. Ayers. 

1. Fraud and deceit — wJuit necessary to constitute, in sale of goods. lu 
au action bj' the vendee, against the vendor of a load of wool, done up in 
fleeces, for fraudulent representations as to the quality and condition of 
the wool, the court, in effect, instructed the jury that although they might 
believe the representations were made, and that they were false in the 
manner stated, still the plaintiff could not recover, unless the representa- 
lions were made with the design to injure the plaintiff": Held, that such 
instruction was erroneous, and well calculated to mislead the jury. 

2. Where the vendor of goods makes a representation respecting the 
quality or condition of the articles sold, which he must, from the very 
nature of the case, have known to be false, whereby injury results to the 
purchaser, it will be a fraud in law, on the part of the vendor, and proof 
of a fraudulent design to injure the purchaser is not necessary to entitle 
him to recover. 

3. And it seems that fraud will be inferred where a party makes a rep- 
resentation as to whicli he has no knowledge or information, and no 
grounds for expressing his belief, if injury results from the falsity of such 
representation. 

4. Saub— fraudulent representations vmst be negatived in the proof. In 
a suit by a purchaser to recover damages of a seller of personal propert)-, 
on tlie ground of false and fraudulent representations respecting tlic prop- 
ert}-, an instruction, on tiic part of the j^laintill', which does not require 
tlie i)artieuhir false representations supposed to have been made to be 
aegatived by tlie proof, will be properly refused. 



1872.] Case v. Ayers. 143 

Opinion of the Court. 

Appeal from the Circuit Court of Lake county; the Hon. 
Erastus S. "Willia^^is Judge, presiding. 

Mr. W. S. Skarls, for the appellant. 

Messrs. Upton & Williams, for the appellee. 

I Mr. Justice Sheldon delivered the opinion of the Court : 

This was an action on the case for deceit, by means of 
alleged false representations in a bargain for the sale of a 
load of wool. 

The verdict and judgment in the court below were for the 
defendant, and the plaintiff" appealed. 

It is assigned for error that the verdict is against the evi- 
dence. 

The verdict, upon the facts, is not satisfactory to us; but 
as for a different reason the cause is to be remanded for an- 
other trial, we will dismiss this point without further remark. 

It is also assigned for error that the court erred in not 
giving the plaintifPs first instruction as asked, and in giving 
it as it was modified by the court, and in giving instructions 
for the defendant. 

There was no error in refusing the plaintiff^'s first instruc- 
tion as asked, because, as drawn, it did not require that the 
particular false representations, supposed by the instruction 
to have been made, should be negatived by the proof. In 
this respect, the instruction was modified by the coiirt, so as 
to make it correct. The court further modified the instruc- 
tion, by inserting, in reference to the representations, the fol- 
lowing words: "And that they were made by the defendant 
to deceive and defraud the plaintiff, the defendant well know- 
ing them to be untrue." 

The first instruction given for the defendant required that 
he should have '' been guilty of intentional fraud or deceit, in 
the sale of the wool," in order to justify a verdict against 
him. 



144 Case v. Ayers. [Sept. T., 

Opinion of the Court. 

The second instruction for the defendant was to the effect 
that the plaintiff could not recover "unless the representa- 
tions were made fraudulently, with the design to injure the 
plaintiff." 

The subject matter of the representations in question was as 
to the good condition of a load of wool, done up in fleeces, 
which the defendant brought to market and sold to the plain- 
tiff; the wool being apparently in good condition, and its bad 
condition, as testified to by the plaintiff's witnesses, was not 
discoverable until after the fleeces of wool had been subse- 
quently opened. Upon undoing the fleeces, as was testified 
to on the part of the plaintiff, the wool was found to be value- 
less as a merchantable lot of wool. In 33 of the fleeces there 
were found to be 84 pounds of extraneous substances, some 
of the fleeces having between four and five pounds of such 
matter done up in a "ball form," and put into the center of 
the fleeces. 

Certainly nothing more was here required to entitle the 
plaintiff to a recovery than that the defendant should have 
known the alleged false representations to be untrue. Corbeti 
V. Brown, 8 Bing. 33; Foster v. Charles, 6 id. 396; 7 id. 105. 
In the last case it was said by Tindal, C. J: "It is fraud, in 
law, if a party makes representations which he knows to be 
false, and injury ensues, although the motive from which the 
representations proceeded may not have been bad;" and see 
Sto7ie V. De7i7iy, 4 Met. 151 ; Bcnnd v. Judson, 21 N. Y. 238. 

The defendant's second instruction, in full, is as follows: 

"The court instructs the jury, on the part of the defend- 
ant, that in this case, althougli they may believe from the 
evidence that the defendant sold to tiie plaintiff the wool 
mentioned in the declaration in this case, and received his 
pay therefor of the plaintiff at the time of such sale; and 
that at the time of the sale, tiie defendant represented to the 
plaintiff' that the wool so sold was good and merchantable 
wool, and done up in a clean and proper manner, with nothing 



1872.] Case v. Ayers. 145 

Opinion of the Court 

in it but the ordinary tags belonging to each fleece, and that 
the plaintiff purchased said wool relying upon such repre- 
sentations ; and that in fact said wool was not, at the time of 
said sale and representations, good and merchantable, but had 
done up in it other wool, such as dead or pulled wool and 
dirt, and other substances, aside from the ordinary tags of the 
fleeces composing said lot of wool, unless such representations 
were made fraudulently, with the design to injure the plain- 
tiff, the plaintiff can not recover in this action, and the law 
is for the defendant." 

In Stone v. Denny, supra, it was laid down that fraud will 
be inferred when the party makes a representation which he 
knows to be false, or as to which he has no knowledge or in- 
formation, and no grounds for expressing his belief. This 
instruction virtually forbids the jury from drawing the infer- 
ence of fraud from the making of knowingly false representa- 
tions. If the representations were false in the particulars 
named, the defendant must, from the very nature of the case, 
have known them to be false. 

Yet the jury are told that although they might believe the 
representations were made, and that they were false in the 
manner stated, still the plaintiff could not recover, unless the 
representations were made with the design to injure the plain- 
tiff. 

There was no attempt at excuse for the representations as 
having been innocently made. The only point of contro- 
versy, so far as the evidence discloses, was whether any mis- 
representations were in fact made. The condition of the 
wool, if it was such as described by plaintiff's witnesses, of 
itself manifested a base fraud. 

The instructions were well calculated to mislead the jury, 

and give them to understand that it was not enough to prove 

the falsity of the representations in the respects named in the 

second instruction, even though the defendant knew them to 

10— 65th III. 



146 Bi-i;sox v. Dow & Fowler. [Sept. T., 



Syllabus. 



be false, but that there must have been proof, in addition, of 
a distinct purpose to injure the plaintiff. 

So far as the instructions required proof to be made of a 
design to injure the plaintiff as essential to the right of re- 
covery, we regard them as erroneous. 

The judgment must be reversed and the cause remanded. 

Judgment reversed. 



Ruby L. Burson 



Dow & Fowler. 

1. Homestead — abatulonment. A part}' executed a mortgage on certaia 
premises on which he resided, but the deed did not release the homestead, 
under the statute. Subsequent!}-, he leased the premises to the mortga- 
gee, and surrendered possession, under an agreement that the lease should 
be renewed from year to year until the mortgage debt was fully paid. 
After an absence of about five years, he returned, and again went into 
possession : Held, that by the act of the mortgagor in thus surrendering 
the possession to the mortgagee, he abandoned his homestead riglit, the 
case being regarded as like in principle to that of Brown v. Goon, li6 111. 
243, in both cases the possession being delivered to be held in conformity 
with the ilccd. 

2. Kkdemption — of the right of a widow to redeem from a sale under a 
decree of foreclosure of a mortgage executed before marriage. A party, pre- 
vious to his marriage, executed a mortgage on certain i»remises. After 
liis marriage, the mortgage was foreclosed, without his wife being made 
a party to the suit, the mortgagee becoming tlie purchaser at the master's 
sale, and receiving a deed. Subsequently, the mortgagor died: Ildd, the 
widow, notwilhstaiidiiig she was not made a party to the suit to foreclose, 
the mortgage having been executed before the marriage, had no right of 
redemption. 



1872. ] BuRsoN V. Dow & Fowler. 147 

Opinion of the Court. 

"Writ of Error to the Circuit Court of Henry county; 
the Hon. George W. Pleasants, Judge, presiding. 

Mr. George W. Shaw, for the plaintiff in error. 

Messrs. Waite & Moderwell, for the defendants in error. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

In 1858, Burson, being the owner of the premises in con- 
troversy, mortgaged them to the defendants in error, Dow & 
Fowler. Burson was then unmarried, but he resided on the 
premises, and his sister, then about 16 years of age, and for 
whom he was guardian, lived Avith him and took care of his 
house. In October, 1860, he leased the land to the mortga- 
gees, but he and his sister continued to reside upon it until 
October, 1861, when she married and went away. Burson 
himself remained until 1863, when he also left. He married 
in 1865, and in 1868 returned, and again took possession of 
the premises, and occupied them with his wife until 1870, 
when he died. The mortgagees had remained in possession 
of the premises until 1868, when they foreclosed their mort- 
gage, became the purchasers at the master's sale and received 
a deed. 

The wife of Burson was not made a party to the bill to 
foreclose, and she now, as his widow, files this bill, praying 
for an assignment of homestead, and also for leave to redeem 
that her dower may be assigned. 

It is not necessary to decide whether Burson, when he exe- 
cuted the mortgage, was the head of a family in such a sense 
as to entitle him to a homestead right. We are of opinion 
that if he could be held ever to have had this right, he clearly 
lost it by the marriage and removal of his sister, and his own 
subsequent departure and prolonged absence, having first 
surrendered possession to the mortgagees, under an agree- 
ment that the lease should be renewed from year to year, 



148 BuRSON V. Dow & Fowler. [Sept. T., 

Opinion of the Court. 

until the mortgage debt was fully paid. The case is, in prin- 
ciple, like Brown v. Coon, 36 111. 243. It that case, it is true, 
the deed was absolute, instead of being a mortgage, but the 
difference is wholly immaterial. In both cases, the possession 
was delivered to be held in conformity with the deed, and 
the homestead, as against the grantee in the one case and the 
mortgagee in the other, was abandoned. 

While we can entertain no doubt as to the homestead, the 
question of the right of the widow to redeem, for the purpose 
of having her dower assigned, would present more difficulty, 
if we could regard it as a new question in this court. 

At common law, when the husband had executed a mort- 
gage before marriage, the widow was not dowable in the 
equity of redemption. In this country, she has been held 
dowable if the heir redeems, but she is bound to contribute 
ratably towards the redemption (4 Kent, 46) ; but her right 
to dower only arises upon a redemption by her husband or 
his legal representatives. Popkin v. Bumstead, 8 Mass. 491 ; 
Bird v. Gardner, 10 ib. 364; Gibson v. Crehore, 3 Pick. 475; 
Jackson v. Dewitt, 6 Co wen, 316 ; Van Dyke v. Thayer, 19 "Wend. 
162. 

The third section of our statute of dower provides that 
where a mortgage is executed before marriage, the widow shall 
be dowable out of the lands as against all persons except the 
mortgagee or those claiming under him. The fourth section 
contains substantially the same provision as to mortgages 
made after marriage to secure the purchase money, where the 
wife has not joined in the mortgage. The fifth section pro- 
vides that where the land is sold after the death of the hus- 
band, under a j)ower in the mortgage or the decree of a court. 
the wife shall, in the cases provided for in the two precedini:; 
sections, be entitled to the interest for her life on one-third 
of the surplus money, if any shall remain after satisfying the 
mortgage. Both cases are placed by the statute upon the 
same footing, and the widow's rights are the same under each 
section. In Stephens v. BichneU, 27 111. 444, which was a case 



1872.] Wood et al. v. Echternach. 149 

Syllabus. 

arising under the fourth section, this court held that the wife 
was not a necessary party to a bill for strict foreclosure, be- 
cause she was not dowable as against the mortgagee. If she 
is not a necessary party in order to forclose her interest under 
one section, she would not be under the other. She was not 
dowable in either case at' common law, and in both cases is 
dowable to the same extent under the statute. The statute 
having received this construction in the case above cited, and 
titles having been acquired under this construction, we do 
not feel at liberty now to disturb it. We must hold that the 
plaintiff in error has no right of redemjjtion, notwithstand- 
ing she was not a party to the bill to foreclose, the mortgage 
having been executed before marriage. 
The decree is therefore affirmed. 

Decree affirmed. 



John Wood et al. 

V. 

William EcHTERiSrAcn. 

New teial — newly discovered evidence. It is only M'here the party has 
used due diligence to procure evidence, and is unable to obtain it, and it 
is of such a character that the court can see it should change the result, 
that a new trial will be granted to let in subsequently discovered evidence. 

Appeal from the Circuit Court of Whiteside county ; the 
Hon. W. W. Heaton, Judge, presiding. 

Messrs. Henry & Johnson, for the appellants. 

Messrs. Dinsmooe & Stager, for the appellee. 



150 Wood et al. v. Echternach. [Sept. T., 

Opinion of the Court. 
Mr. Justice Waj.kkr delivered the opinion of the Court: 

This was a suit brought by appellee before a justice of the 
peace, against appellants, to recover a balance claimed to be 
due on a contract to set and cultivate a hedge. On the trial 
before the justice, plaintiff below recovered a judgment 
against defendants for ^91.50, whereupon an appeal was pros- 
ecuted to the circuit court, where another trial was had. 
resulting in a verdict in favor of the plaintiff for ^88.50. 
Thereupon defendants entered a motion for a new trial, which 
was overruled by the court, and judgment Avas rendered on 
the verdict, to i-evorse which tliis appeal is prosecuted. 

A reversal is urged upon two grounds, first, that the evi- 
dence fails to sustain the verdict of the jury ; and, secondly, | 
because the court overruled the motion for a new trial on the 
ground of newly discovered evidence. There seems to be no 
dispute as to the amount of the iiedge which was set, and 
both parties agree that the work was ])erformed under a con- 
tract. The whole dispute is as to the terms of the agreement. 
And on that question the evidence is inharmonious, if not 
wholly irreconcilable. Fn this conflict it is the province of 
a jury to determine to which witnesses they will give credit. 
and the testimony of Avhich they will reject. The witnesses 
were before the jury, and their moans of ascertaining the truth 
was superior to ours, where we only see the evidence on 
paper. In this case two juries seem to have given credit to 
the witnesses of appellee. And in addition tiieroto. tiie judge 
wlio tried the case and saw all of the witnesses on the stand, 
has given his approval of the verdict by overruling tic motion 
for a new trial. Had lie believed the testimony of appellants' 
witnesses entitled to more weight than that of appellee's wit- 
nesses, he would not have hesitated to grant a new trial. 
We are not able to say that tiic evidence fails to sustain the 
verdict, and can not rever.><e on this assignment of error. 

Was the newly discovered evitlenceof that ciuiracter wiiich 
required the court to set aside the verdict and grant a new 



1872.] Wood et al. v. Echteenach. 151 

Opinion of the Court. 

trial? We fail to see that appellants could have been sur- 
prised by the evidence on the trial. It was a second trial, 
and Ave presume the same witnesses testified at both. But 
even if appellee testified for the first time in the circuit court 
as to the survey of the land, that was only a collateral circum- 
stance in nowise vital to the issue. There is no pretence that 
the hedge was not planted on the proper line. And the 
liability of appellants was the same whether the line was or 
was not run by the surveyor. ^All the evidence of the sur- 
veyor would tend to prove would be that appellee's statement 
was incorrect as to the survey. It would not contradict him 
as to the terms of the contract. 

The evidence of Clites if admitted would only be cumula- 
tive to evidence introduced by appellants on the trial. It 
would tend slightly to support the testimony of appellants. 
Such evidence is not usually sufficient to require a new trial^ 
unless it is so clear as to satisfy the court that it would con- 
trol the verdict on another trial. 8m.itli v. Shultz, 1 Scam. 490;: 
Morrison v. Stewart, 24 111. 25; Martin x. Ehrenfels, \hA^9i',. 
Adams v. The People, 47 111. 376 ; Tlie Toledo & Western R. R. 
Co. V. Seitz, 53 111. 452. Again, there is nothing to show that 
the evidence of Clites and Woodworth could not have been 
had without any inconvenience or delay. Chicago & Greai 
East. R. W. Co. V. Vosburgh,4b 111. 311; Calhoun v. O'Neal, 
43 111. 354. For aught that appears the evidence of these 
witnesses might have been readily obtained whilst the trial 
was progressing. It is only where the party has used due 
diligence to procure evidence, and is unable to obtain it, audit 
is of such a character that the court sees that it should change 
the result, that a new trial will be granted to let in subse- 
quently discovered evidence. A different rule would protract 
litigation indefinitely in many cases, without changing results. 

AVe see no error in the instructions given to the jury. And 
perceiving no error in the record, the judgment of the court 
below is affirmed. 

Judgment affirmed. 



152 Spangler v. Danforth et al. [Sept. T., 

Syllabus. 



Ezra L. Spangler 

V. 

Willis Danforth et al. 

1. Statute of frauds — wlmt is a sufficient memorandum in writing. 
Where the owner of laud, after bargaining for the sale of the same, made 
and delivered to the purchaser a letter to his agent, residing in the neigh- 
borhood of the land, as follows: *" Chicago, April 5, 1871. E. T. Chase: 
Mr. Spangler called on me to-day, and agreed to take the pasture lot for 
$2400— $1000 cash ($300 down and $700 May 10, 1871); $400 December 1, 
1871, at ten per cent; $1000 July 1, 1872, at ten per cent, secured by mort- 
gage. Make the papers, and I will pa}' you commissions. W. Danforth :" 
Held, that this was such a memorandum, in writing, of the contract of sale 
as is required by the statute of frauds, and which, if fairly made, in the 
absence of any other claim intervening, would be enforced in a court of 
equity. 

2. Specific performance — as against a prior purchaser under a verbal 
contract, the second purchaser having a superior equity. A, the owner of 
land, had authorized his agent to sell the same for a sum not less thau 
$2400, and on the 5th of April, at 3 o'clock p. m., sold the same to B, and 
gave 13 a memorandum, in writing, of the sale, directed to his agent, and 
requesting the latter to make out the papers necessary to carry into eflVct 
the sale. It appeared that on the same day, at 11 o'clock p. m., the agent 
had verbally sold the ,<;ame premises to C for $2350, who paid no money 
at the time. B, at tlio time of his purchase, paid $20, to bind the bargain, 
and, on his return, presented his contract to the agent, and requested him 
to make out the necessary papers, which the latter refused to do, and also 
made a tender of tlie balance then due under the contract. On the next 
day the agent informed C of B's purchase, and B then paid $25 on his 
purchase, taking a receipt therefor, dated as of the 4th of the same month. 
The owner, afterwards, upon the representation of his agent that C had 
paid the $25 at tlie time of his purcliase, convej'cd the premises to C. B 
having tendered the several payments then due and otiered to perform the 
contract, filed his bill against the owner and C for the specific perform- 
ance of his contract: Held, tliat B liad tlie superior equity, and was en- 
titled to the relief souglit, upon bringing the balance of the purchase 
money, with interest, into court; and that C's verbal contract, without the 
payment of any money until after notice of B's purchase, was void under 
the rtatute of frauds, and not enforcible as against the superior equity 
of B. 



1872.] Spangler v. Danforth et al. 153 

Opinion of the Court. 

Appeal from the Circuit Court of Will county; the Hod. 
JosiAH McRoBERTS, Judge, presiding. 

Messrs. Breckeneidge & Gaensey, for the appellant. 

Mr. F. Goodspeed, for the appellees. 

Mr. Justice Breese delivered the opinion of the Court : 

Willis Danforth, residing at Chicago, was, on the fifth of 
April, 1871, the owner of a tract of land in the city of Joliet, 
in Will county, known and described as "the pasture lot," 
containing about twenty acres. In February preceding, he 
had given to E. T. Chase, a resident of that city, verbal 
authority to make sale of this lot, at a sum not less than 
twenty-four hundred dollars. Ezra L. Spangler, the appel- 
lant, was also a resident of Joliet, and before the fifth of 
April, 1871, had a conversation with Chase about the pur- 
chase of this lot, but no purchase was effected. On the fifth 
of April, of that year, Spangler went to Chicago, and had an 
interview with Danforth, in his office, and received from him 
a paper of the following tenor : 

"Chicago, April 5, 1871. 
"E. T. Chase: 

"Mr. Spangler called on me to-day, and agreed to take the 
pasture lot for |2400— $1000 cash ($300 down, $700 May 10, 
'71) ; $400 Dec. 1, '71, at 10 per cent; $1000 July 1, '72, at 
10 per cent, secured by mortgage. Make the papers, and I 
will pay you commissions. W. DANFORTH. 

" Bec'd twenty dollars on the above contract. 

" W. Danforth." 

Spangler returned to Joliet with this paper, presented it to 
Chase and requested him to make out the necessary papers, and 
tendered to him two hundred and eighty dollars, the balance 
of the first payment, and, on the 10th of May following, offered 
to Chase the further sum of seven hundred dollars, and at the 



154 Spangler r. Danforth et aJ. [Sept. T.^ 

Opinion of the Court. 

same time offered to execute and deliver a mortgage, according 
to the agreement with Danforth, and desired him to perform 
the agreement on his part, by making a deed for the premises^ 
all which Chase refused. 

The grounds for Chase's refusal were the following, as 
Chase and Strong testify : They say that at eleven o'clock in 
the morning of the same fifth day of April, he. Chase, agreed 
to sell the same land to Strong, and concluded a sale with 
him, on that day and hour, for twenty-three hundred and 
fifty dollars. No money was paid by Strong at this time, nor 
was there any memorandum of the contract made and signed 
by the party to be charged, or by his agent. On this day, 
however, Chase prepared a deed from Danforth to Strong, 
and sent it by the mail of that day to Danforth, at Chicago, 
it reaching him there on the morning of the si.xth. On the 
sixth, at Joliet, Chase having told Strong that Spangler had 
been to Chicago and bargained for the land with Danforth, 
Strong paid Chase twenty-five dollars on the bargain, for 
which Chase gave a receipt, dating it as of the fourth. Thi< 
Avas all the writing between Chase and Strong. Strong paid 
no money on the fifth, and paid the twenty-five dollars on the 
sixth, on being informed by Chase that S])angler had been to 
Chicago, and had seen Danforth, and got the writing herein- 
before set out. Strong paid no more until the twelfth of 
April, when the deed was executed to him by Danforth. The 
price he paid for the land was twenty -three hundred and fifty 
dollars. 

Chase represented to Danforth, so Danforth testifies, that 
Strong paid him the twenty-five dollars on the fifth day of 
Ai)ril; and we infer this fact had much to do in infiuoncing 
Danforth to the execution of the deed to Strong. There is 
no wrong imputable to Danforth, for it is clear he endeavored 
to adjust the equities between these parties as fairly as he 
could in the light of the supposed facts before him. The im- 
portant facts were, the agreement by Strong to purchase made 
at 11 o'clock in the morning of the fifth, some hours before 



1872.] Spangler v. Danforth et al. 155- 

Opinion of the Court. 

Spangler purchased, and the payment of twenty-five dollars 
on that day, by Strong to Chase, on the contract. This 
seemed to give to Strong a prior equity, and on them Dan- 
forth incurring thereby a loss to himself of fifty dollars, he 
having sold to Spangler for twenty-four hundred dollars, 
whilst Strong purchased from Chase for twenty-three hun- 
dred and fifty dollars, so no expectation of profit can be 
charged upon Danforth for his action ; it was conscientious, 
undoubtedly. 

It appears Spangler had an interview with Chase, prior to 
the fifth of April, about this land, but came to no terms. 

Strong had notice, before he paid any money, that Spangler 
had a contract for the land from Danforth. In fact, he paid 
no money until after Chase had informed him Spangler had 
this contract. He then paid twenty-five dollars. On the 12th 
of April, Danforth executed a deed to Strong. 

It is alleged by Spangler, after he got this contract he took 
possession of the land on the 8th of April. The truth is, the 
land was under lease to one Bannon, who was in actual pos- 
session, and such possession as Spangler took was a clear tres- 
pass on Bannon's right, and he can claim nothing on this 
score. 

The first question naturally arising is, which of these par- 
ties, Strong or Spangler, has the prior equity? And this 
includes the question, which party made the first valid and 
binding contract? This must be resolved in favor of appel- 
lant. The contract he made with Danforth, the owner of the 
property, about three o'clock in the afternoon of the 5th of 
April, was such a memorandum, in writing, as required by the 
statute of frauds and perjuries, fairly made, and would, na 
other claim intervening, be enforced in a court of equity 
against the vendor nolens volens; whilst the contract made at 
eleven o'clock of the same day, by Strong, has none of the 
requisites of the statute, and amounts to no more than a pro- 
posal to purchase, and liable to be withdrawn at any moment, 
it having, of itself, no intrinsic or binding force. It is argued 



156 Spangler f. Daxforth et aL [Sept. T., 

Opinion of the Court. 

by defendant in error the contract could be enforced, pro- 
vided the vendor did not interpose the statute. That may be 
so, but the question is, could he affirm such a contract, to the 
detriment of his own vendee, to whom he had executed a bind- 
ing contract and taken from him earnest money? Should he 
have declined to carry out the verbal contract made by Chase, 
would a court of equity compel him to perform it? No con- 
siderable part of the purchase money has been paid. It is 
said Strong deposited it in bank, but it was to his own credit, 
for there is nothing in the record to show otherwise. 

But, in another view, is the equity of Strong as clear as 
that of appellant? Does it not seem as if there was some 
complicity between him and Chase to deprive appellant of the 
benefit of his contract? The fact is undeniable that, on the 
5th of April, Strong had not paid one dollar on the purchase, 
and when told, on the 6th, that appellant had this contract 
from Danforth executed on the 5th, he then paid twenty-five 
dollars, and took from Chase a receipt therefor as having been 
paid on the 4th, one day in advance of appellant. AVhy was 
this done but to give to Strong, so far as priority of payment 
evidenced by receipt could do it, the prior right? It has the 
appearance of an arrangement between Chase and Strong to 
deprive appellant of the benefit of this contract. Cliase. per- 
haps, being displeased because appellant treated with the 
owner of the property rather than with himself. 

We think, in view of all the circumstances, appellant's 
equity is superior to that of Strong, and Danforth should 
have conveyed the land to him. He accepted twenty dollars 
of appellant for the express purpose of binding the bargain, 
and he retains the money, though it appears lie offered to re- 
turn it to appellant, who refused to accept it. 

It is just and equitable, in the view we have felt compelled 
to take of this case, that appellant should have a legal title, 
upon payment by liini of the price he agreed to pay Danforth, 
and Strong, having in II notice of a})pellant's equity, should 
surrender the lejral title to him. 



1872.] TwixKNG v. Martix. 157 

Syllabus. 

The decree is reversed and the cause remanded, with in- 
struction to the circuit court to require appellant to bring 
into court the balance of the purchase money and interest, in 
such reasonable time as the court may appoint, to be paid to 
the parties entitled, after adjusting subsequent equities which 
may exist between them, in such manner as the facts may 
warrant. 

Decree reversed. 



Hiram Twining 

V. 

William Martin. 

1. EoND FOR COSTS — where plaintiff is a non-resident — motion to dismiss 
for non-compliance with the statute. A motion made by the defendant in 
a cause, to dismiss the suit, on the ground that the plaintiff had filed no 
bond for costs, as required by the statute in case of the non-residence of 
the plaintiff, before the commencement of the suit, is of a character not 
looked upon with much favor, and slight evidence is sufficient to overcome 
the prima facie case made by the party making the motion. 

2. New trial — verdict against the evidence. Except in cases where 
the verdict is manifestly against the weight of the evidence or where it 
plainly appears to have been the result of passion or prejudice, this court 
is always reluctant to disturb the finding of the jury upon the facts. 

3. Instructions. Where the substance of an instruction asked by a 
party was contained in another of the series given on his behalf, it was 
h^ld not to be error to refuse to give it a second time. 

Appeal from the Circuit Court of Will county; the Hon. 
JosiAH McRoBERTS, Judge, presiding. 

Mr. A. O. Marshall, and Messrs. Breckenkidge&Gaen- 
SEY, for the appellant. 

Messrs. Olin & Phelps, for the appellee. 



158 Twining v. Martin. [Sept. T., 

Opinion of the Court. 
Mr. Justice Scott delivered the opinion of the Court : 

This action was commenced by appellee against appellant, 
in the Will circuit court, to recover the value of certain articles 
of personal property alleged to have been left with the appellant 
in 1869 to be by him kept until called for. 

In the spring of 1870, appellant having a claim against 
one Jacob Martin, the father of appellee, who had previ- 
ously left the State, caused an attachment to be issued, and 
levied on the property in controversy, and such proceedings 
were had that the property was subsequently sold by the 
officer making the levy. The appellee having made a demand 
for the property, and appellant not being able to deliver 
it, brought this action in trover to recover its value. A trial 
was had which resulted in a verdict for the appellee, on which 
the court entered a judgment, from which the appellant now 
prosecutes this appeal. 

The first suggestion of error is the court erred in over- 
ruling appellant's motion to dismiss the suit on the ground 
that appellee was a non-resident, and had filed no bond 
for costs, as the statute requires in case of non-residence, 
before the suit was commenced. The appellee entered a cross- 
motion for leave to file a bond for costs, which was allowed 
and a bond given. The motions were supported by the 
affidavits of the respective parties and others. Such motions, 
though authorized by the statute, are not looked upon with 
much favor. They are purely dilatory in their character, and. 
of course, do not affect the merits of the controversy. Slight 
evidence has always been held suHiciont to overcome the 
pinma facie case made by the party making the motion. In 
this instance the court could properly find from the counter- 
atlidavits that appellee was not a non-resident of the State 
at the date of the eommoncement of the suit, but afterwards 
became a non-resident, and having so found, there was no 
error in ])ermitting tlie appellee to file a bond for costs. 



1872.] Twining v. Martin. 159 

Opinion of tlie Court. 

It is next urged that the verdict is against the evidence, 
and that the damages found are excessive. 

We have carefully considered the evidence in the record, 
and find it to be conflicting as to the true ownership of the 
property and its value. In case the jury relied on, and gave 
credence to the evidence produced on behalf of appellee, 
they could find that he was the sole owner of the property. 
The witnesses differ widely in their estimates of the value of 
the property, some placing it as high as seven hundred and 
fifty dollars, and others as low as one hundred dollars. In 
the conflicting state of the evidence, it was the duty of the 
jury to reconcile it as well as they could, and having done 
so, we are not prepared to say that they found incorrectly. 
The jury had a better opportunity to judge of the credibility 
of the several witnesses from seeing them and their manner 
of delivery, than we can possibly have from reading the mere 
record of their testimony, which must necessarily be more or 
less inaccurately recorded. It is not to be expected that an 
appellate court can obtain as clear an understanding of the 
meaning of testimony from the record, however accurately 
made, as the jury who hear it from the lips of the several 
witnesses as it is delivered, and who witness the candor with 
which it is spoken. Oral testimony may be said to have a 
spirit which can never be transcribed into the record, and 
can only be fully appreciated by those who hear it pronounced. 
Except in cases where the verdict is manifestly against the 
weight of the evidence, or where it plainly appears to have 
been the result of passion or prejudice, we are always reluctant 
to disturb the finding of the jury upon the facts. 

In view of the conflicting character of the evidence we are 
not willing, in this case, to disturb the verdict. That 
appellee was entitled to a verdict for some amount, we see no 
reason in the evidence to doubt. It may be that the amount 
found does injustice to appellant, but of that fact the jury 
were the better judges, and with their finding we must be 
satisfied. 



160 City of Chicago v. O'Brennan. [Sept. T., 

Sj'llabus. 

It is also urged that the court erred in giving and refusing- 
instructions. 

The instructions, when considered together, present the law 
applicable to the facts with sufficient accuracy, at least we 
can see nothing in the series given for the appellee that would 
tend to mislead the jury on the issues involved. 

The substance of the instruction asked by appellant 
and refused by the court was contained in the fourth of the 
series given on his behalf, and there was no error in refusing 
to give it a second time. 

No error affecting the merits of the case appearing, the 
judgment must be affirmed. 

Judgment affirmed. 



The City of Chicago 

V, 

Martin O'Bkennan. 

1. Nkqliqence — ill action against a city Jor, evidence of plaintiff's 
family and condition, irrelevant. lu an action against a city, to recover 
damages for a personal injury received in consequence of negligence and 
mere omission of duty, the plaintiff was allowed to testify against objec- 
tion that he had a wife, seven young daughters and two sous in Ireland at 
the time of the accident, and that he was their supporter as a lecturer : 
Held, that the court erred in admitting the testimony, as exemplary 
damages were not recoverable in such a case and it was not relevant to 
any issue. 

2. Same — special damage, mnst he claimed in the declaration. In a» 
action on the case against a city to recover damages for personal injury 
received through the mere negligence of the city, the only special damages 
alleged in the declaration was the amount paid out in endeavoring to get 
cured. The court jiermitted the plaintiff to give in evidence the fact of a 



1872.] City of Chicago v. O'Beennan. 161 

Syllabus. 

particular engagement to lecture in Virginia and the probable gains 
thereof: Held, that such testimony was inadmissible under the plead- 
ings. To justify its admission these special damages and the facts upon 
which they were based should have been set out in the declaration. 

3. Same — Uahility of city for an injury sustained from a public nuiS' 
ance in respect to property occupied hy it. Where the plaintiff received a 
personal injurj- hy the falling of a portion of the brick and plastering in 
a room occupied by a city as a common council room, it was held that if 
the dangerous condition of the premises at the time of the accident wa» 
the result of causes beyond the control of the city authorities, and the 
injury happened before the lapse of a reasonable time to restore them to a 
safe condition, then the citj' would not be liable. 

4. But although the original cause might have been inevitable acci- 
dent, yet if the city authorities continued to use the building for public 
meetings of the council and failed to repair the premises in a reasonable 
time, and the injury happened in consequence of such neglect, while the 
plaintiff was in the exercise of due care, the city would be liable to him. 

5. Same — presumption as to duty of a municipal corporation to keep its 
public buildings in a safe condition. Where the plaintiff sought to recover 
of a city for injuries received in consequence of a neglect to keep its 
common council room in a proper and safe condition, the court was asked 
to instruct the jury that to entitle the plaintiff to a verdict it must appear 
from the evidence that it was the duty of the city to keep the room where 
the plaintiff was injured in repair, which was refused: Held, that while 
the instruction embodied a correct proposition of law it was not error to 
refuse it, as the uncontradicted testimony was that the city at the time of 
the injury, and for many years before, had been in the exclusive posses- 
sion of the premises for the purposes of the public sessions of its com- 
mon council, and no testimony was offered tending to show the duty of 
any other party to keep them in repair ; and therefore the duty of keeping 
them from becoming dangerous arose prima facie from the fact of 
possession. 

6. Same — ichetJier the owner or party in possession of real estate is liable 
for suffering anuisance, etc. The liability to an action in respect of real 
property, may be for misfeasance or malfeasance, as for obstructing ancient 
lights, or for nonfeasance, as for not taking care of premises, so as to pre- 
vent the consequences of a public nuisance. In these cases the action 
should, in general, be against the party who did the act complained of, or 
against the occupier, and not against the owner, if the premises were in 
the possession of his tenant, unless the owner had covenanted to repair. 

Appeal, from the Circuit Court of Cook county ; the Hon. 
John G. Rogers, Judge, presiding. 
11 — 65th III. 



162 City of Chicago v. O'Brenxan. [Sept. T., 

Opinion of the Court. 

Mr. I. N. Stiles aiul Mr. John Lkwis, for the appellant. 

Mr. Sidney Thomas, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was case, brought in the circuit court of Cook county, 
by appellee against appellant, the City of Chicago, to recover 
damages alleged to have been sustained by him, from the 
falling of a portion of the brick and plastering in the com- 
mon council chamber of said city, and striking appellee upon 
the head, thereby injuring him. Tiie declaration contains 
but one count, and in substance alleges that the premises in 
question were, at the time, in the possession and use of the 
said city as a common council chamber; the power and duty 
of the city to keep the same in a safe and secure condition ; 
but that the city, well knowing the premises, wrongfully and 
unjustly permitted said room to be and continue insecure, 
aad that it was at the time so badly, insufficiently and defect- 
ively secured, that by means of the premises "the plaintiff, 
Avho was pursuing his avocation as a journalist, and wholly 
unaware of the insetmrity of the building or council cham- 
ber aforesaid, and without any nogligonce on his jiart. then 
and tliere necessarily and unavoidably received several dan- 
gerous wounds by the falliug down of some of the jdast(>ring 
and brick with violence on his bared head, and thereby tl)(> 
plaintiff, as a lawyer, lecturer and journalist, became and 
was sick, sore and incapacitated from attending to his busi- 
ness, and continued so for a long time, to wit: fortwo months. 
And as regards plaintiff's profession as a lecturer, he has been 
almost wholly, ever since, disabled from pursuing it." The 
oidy allegation of special damage in the declaration, is that 
he was obliged to and did pay, etc., a large sum of money, 
to wit: the sum of two hundred dollars, in and about endeav- 
oring to get healed, etc. 



1872.] City of Chicago v. O'Brenxan. 163 

Opinion of the Court. 

Plea, not guilty. Trial by jury, verdict of guilty, and 
plaintiff's damages assessed at $950. Motion for new trial by 
defendant, which was overruled by the court and judgment 
given upon the verdict. The evidence and rulings of the 
court were preserved by bill of exceptions, and the case 
brought to this court by appeal. The errors assigned question 
the admissibility of certain evidence given on behalf of appel- 
lee, and the refusal of the court to give the seventh instruc- 
tion asked on behalf of appellant. 

Appellee was a witness for himself; and, after detailing 
the circumstances of the accident, he was asked, by his coun- 
sel, to state what family he had. To this appellant's counsel 
objected. But the court overruled the objection, and excep- 
tion was taken. Appellee answered : I had a wife, seven 
young daughters and two sons. They were in Ireland at that 
time, and I to as their supporter as a lecturer. 

Was this evidence admissible ? If it was, then it would 
have been competent to have gone farther, and shown all the 
circumstances of the family : Such as that the mother was 
an invalid; that one of the daughter^ was blind; that one 
son had accidently lost a leg, etc., if such had been the case, 
so as to present a most pitiable picture of a helpless family 
dependent upon appellee for support as a lecturer. For, as 
the evidence had no place in the case, but as a stimulant to 
the sympathy of the jury, it would be just as competent to 
make the stimulant strong as weak. But it was not compe- 
tent at all. It is an elementary rule that the evidence must 
be confined to the points in issue. There was no point in 
issue to which this evidence had any relevancy. Could it 
have any legitimate bearing upon the question of damages ? 
By no means. Because, in a case like this, the measure of 
damages goes only to the actual damage sustained, and com- 
pensation is the rule. Would appellee's counsel contend that 
it was competent for him to give direct evidence of his client's 
poverty ? There is a class of cases, but quite distinguishable 
from this, in which it has been held, that the party injured 



164 City of Chicago t-. O'Brennan. [Sept. T., 

Opinion of the Court. 

may show his own poverty of circumstances as well as the 
wealth of his opponent, as bearing upon the question of 
damages. But that class is where the injury is of a different 
character, and where the jury are warranted in going beyond 
the actual, and in giving exemplary or jMinitory damages. 
Grahle v. 3Targrave, 3 Scam. 372. 

This sort of attempt to foist irrelevant matters upon the 
attention of the jury with a view to creating a personal inter- 
est, is too often the secondary resort of a party on the witness 
stand who is too conscientious to commit perjury, but not 
sufficiently self-possessed to resist the impulses of feeling and 
self-interest. Next to the temptation to perjury, this practice 
constitutes the chief vice springing from the statute making 
parties competent witnesses, and makes no inconsiderable 
degree of watchfulness necessary to keep them within the 
rule requiring the evidence to be confined to the points in 
issue. 

The court permitted appellee's counsel to give in evidence, 
through appellee as witness, the fact of particular engage- 
ments to lecture in the State of Virginia, and the probable 
gains thereof, and that appellee was prevented from fulfilling 
them by reason of the injury, and his estimates of the special 
loss thereby sustained. Exception was taken to the admis- 
sion of this evidence by appellant's counsel, who now insist 
that it was inadmissible on the ground that it was special 
damage, which was not alleged in the declaration. We havi' 
read the declaration with care, and set forth all that relates 
to special damages, which is confined to the amount paid out 
in endeavoring to get cured. The point is well taken and is 
too plain to admit of argument. 

In order to subserve the ends of good pleading, which are 
to apprise the opposite party of the nature of the claim, and 
prevent surpri.se, it was necessary that these special damages 
and the facts on which they were based, should have been 
set out in the declaration. 



1872.] City OF Chicago v. O'Beexxan. ]65 

Opinion of the Court. 

The only remaining point relied upon, is that the court 
refused to give appellant's seventh instruction, as follows : 
"The jury are instructed, that, to entitle the plaintiff to a 
verdict, it must appear from the evidence, that it was the 
duty of the city of Chicago to keep the room where the 
plaintiiF was injured, in repair." This instruction embodies 
a correct proposition of law. Nevertheless, as the case stood, 
it was not error to refuse it. The testimony is uncontradicted, 
that the city was, at the time of the injury, and for many 
years previously thereto had been in the exclusive possession 
of the premises, for the purpose of the public sessions of the 
common council of the city. And no testimony was offered 
tending to show that any other party was bound to keep them 
in repair. Now, the duty of keeping these premises in repair 
to the extent of preventing them fi'om becoming dangerous to 
life and limb — or in other words, from becoming a public 
nuisance — arose j>/7ma/ac/e from the fact of possession. 

The liability to an action in respect of real property may 
be for misfeasance or malfeasance, as for obstructing ancient 
lights ; or for noyfeasance, as for not taking care of premises, 
so as to prevent the consequences of a public nuisance. In 
these cases the action should, in general, be against the party 
who did the act complained of, or against the occupier, and 
not against the owner, if the premises were in possession of 
his tenant, unless the owner had covenanted to repair. 1 
Chit. PI. 82, 83. 

It has accordingly been held that if a third party sustained 
damages by defect or want of repair of premises in possession 
of a tenant, the law will presume that the tenant, and not the 
landlord, is responsible therefor, though this is subject to be 
rebutted by evidence. Kastor v. Neivhouse, 4 E. D. Smith, 
20 ; Fayne v. Rogers, 2 H. Bl. 349 ; Chatham v. Hampson, 
4 Term R. 318. 

It is a general rule of evidence that a person in possession 
of land is prima facie presumed to be seized in fee. Whether 
the fact that this was a municii^al corporation in possession 



166 City of Chicago v. O'Beennax. [Sept. T,, 

Opinion of the Court 

of a portion of a public building within its own limits, would 
weaken or strengthen that presumption, is a question we need 
not discuss. The law will not presume the possession to have 
been wrongful; and if rightful, it must have been that of an 
owner or tenant. But even if the city had been a disseisor 
and in possession as such, still if it appropriated them to 
public use, as shown by the evidence, it would be responsi- 
ble for the consequences of a public nuisance if it failed to 
take such care of them as M-as necessary to prevent their be- 
coming dangerous to life or limb. 

If the condition of the premises, at the time of the injury, 
was the result of causes beyond the control of the city au- 
thorities, and the injury happened before the lapse of a 
reasonable time to restore them to a safe condition, then the 
citv would not be liable. Although the original cause might 
have been inevitable accident, yet if the city authorities con- 
tinued to use them for public meetings of the council, but 
failed to repair within a reasonable time, and the injury hap- 
pened to a})pellee in consequence of such neglect, while he 
was in the exercise of due care, the city would be liable. 

For the errors pointed out, the judgment must be reversed 
and the cause remanded. 

Judgment reversed. 



1872.] Deenis v. Deenis. 167 

Opinion of the Court. 



David G. Deenis 



Lydia Deenis. 

1. Husband and wife — right of wife living separate from Tier husband 
to maintenance, under act of 1867. Even though it he conceded that 
the husband had been guilty of such misconduct as would justify his 
•wife in living separate and apai't from, him, and give her a remedy in 
equity for support and maintenance, yet -when she continues to cohabit 
with him for four years thereafter, with full knowledge of the facts, if 
she then leaves him, through fear of a repetition of such misconduct, 
without any recent act on his part to justify such fear, her separation can 
not be said to be without her fault, so as to justify a decree in her favor 
for maintenance and support. 

2. Same — condonation of offense Where a husband has been guilty of 
such improper conduct as would make his wife's separation from him 
justifiable, and entitle her to a decree for maintenance and support, yet„ 
if she, with knowledge of the same, continues to live with him for four 
years thereafter, this will be held to be a condonation of the offense, and 
she can not afterwards, without fault on her part, leave him for such- 
cause. 

3. Condonation. Condonation is an act of the mind, either express 
or implied, and it may be indicated by the acts of the parties. It is a bar 
to a bill for divorce for the cause forgiven, and the principle applies with 
equal force to an application in equity by the wife, living apart from her 
husband, for a decree for maintenance and support under the statute 
of 1867. 

Appeal from the Circuit Court of La Salle county; the 
Hon. Edwin S. Leland, Judge, presiding. 

Messrs. Eice & Bickford, for the appellant. 

Messrs. Dickey, Boyle & Richolson, for the appellee. 

Mr. Justice Thornton delivered the opinion of the Court : 

This bill was filed for relief under the following provision 
of the statute: 



168 Deenis v. Dee>-is. [Sept. T., 

Opinion of the Court. 

"Married women who, without their fault, now live or 
hereafter may live separate and apart from their husbands, 
may have their remedy in equity in their own names respect- 
ively, against their said husbands, for a reasonable support 
and maintenance, while they so live or have so lived separate 
and apart." Laws 1867, 132. 

The bill alleges that the parties were married in 1843; 
that several children, sons and daughters, were the issue of 
the marriage; that for sixteen years of their married life the 
wife had no grievous cause of complaint against the husband; 
that between the years 1860 and 1867, on several occasions, 
he made improper and lascivious advances to his two daugh- 
ters, Louisa and ^lary, and attempted to seduce them ; and 
that in view of his former conduct, and in view of the fact 
that her daughter Clara had become fourteen years of age, 
and was liable to be assaulted by her father, as her elder 
sisters had been, if she remained at home, the complainant 
deemed it her duty to separate herself from her husband, and 
did so on the 23d of September, 1871. 

There is no allegation in the bill, and no proof of any im- 
propriety of conduct on the part of the father from the fall 
of 1867 until the abandonment of her home by the wife. 

Louisa was married in 1866, and left home. !Mary lived 
■with her father for over two years after the alleged attempt 
upon her virtue. She was married in 1869, and then left her 
father's house. 

We shall not recapitulate the testimony. It has been a sad 
and sickening task to road the account of this unfortunate 
family quarrel, as given by father and mother and children. 

The coini>lainant testified that from 1867, the conduct of 
the defendant towards his daughters was entirely proper, and 
that she never iiad any cause to complain of his conduct 
towards the youngest daughter, Clara. After the alleged mis- 
conduct she continued to live with him for four years; and 
during this period a chiKl was born. 



1872.] Deenis v. Deenis. 169 

Opinion of the Court. 

We shall not determine from the evidence whether a sepa- 
ration on the part of the wife in 1867, or during the time of 
the misconduct as charged, would not have been without her 
fault. The question is, does a bare fear of the repetition of an 
offense, without any recent conduct to justify the fear, and 
nothing but the recollection that an offense had been com- 
mitted four years before, authorize the separation and suit 
intended in the statute ? Neither is it necessary to decide, in 
this case, whether the causes for separation which would 
afford the remedy intended by the statute under consideration, 
would justify a divorce a mensa et ihoro. 

It may be conceded that the husband had acted improperly; 
and that his conduct had been such as to shock the sensibili- 
ties of the wife, and in opposition to the first principles of 
morality. But after full knowledge of the existence of 
the offense she continued cohabitation with him, gave birth 
to a child, and continued to live with him for four years, 
during which time there was no attempt on his part to seduce 
his daughter or disturb the fa'mily peace. 

In his answer the defendant set up that for years after the 
pretended offenses the complainant voluntarily lived and 
cohabited with him as his wife without any complaint, and 
that, if the offenses charged were committed, the complainant 
had forgiven them. The proof sustains the answer. 

Even in an application for a divorce, where good ground 
once existed for a decree, condonation is an absolute bar to 
any remedy for the particular injury which has been forgiven. 
This principle applies as well to the case before us. The sep- 
aration, on the part of the wife, must be " without her fault." 
If he has committed an offense which is forgiven, the offense 
no longer exists, and there can be no cause for the separation. 

Condonation is an act of the mind, either expressed or im- 
plied. It may be indicated by the acts of the party. The 
•complainant testified that she knew of the alleged offenses; 
and yet after this knowledge there was continued matrimonial 
intercourse. From such facts the law presumes forgiveness. 



170 Spurgin v. TRAUBei al. [Sept. T., 

Syllabus. 

She was cognizant of all his acts upon which the alleged 
offenses were based. For four years they lived together as 
man and wife, and there was uninterrupted harmony, so far 
as the old offenses were concerned. There was no attempt 
to revive them, and no conduct to justify a separation. Under 
the circumstances we must presume a reconciliation. The 
continuous cohabitation with knowledge of the alleged guilt, 
and the acquiescence for years, must be regarded as a remis- 
sion of the past offenses. 

The decree is reversed, and the cause remanded. 

Decree retersed. 



William Spurgin 

V. 

Maria Traub et al. 

1. FRAtTD — to justify the setting aside of a deed of ti'ust. A court of equity 
•will not set aside a deed, on the ground that its e.xecution M-as procured by 
fraudulent misrepresentations, without the clearest proof of the same; and 
where the grantee was not a partj' to such fraud, it must appear that tho 
grantor seeking such relief was not guilty of any negligence, but used 
reasonable diligence to prevent being imposed upon. 

2. So, where a husband and wife executed a mortgage upon their 
homestead, the title of which was in the wife, to secure a debt of a firm of 
which the husband was a member, and the wife filed a bill in equity to 
cancel the mortgage, on the ground that she was induced to execute the 
same uniier the belief that it was upon other property; and it ajipeared 
that she was unable to read or write in English, and spoke the language 
imi>erfeclly ; and she testified her husband, and the notary who took her 
acknowledgment, represented to her that it was upon her husband's brew- 
ery lots, and that tho mortgage was not explained to her, in which she was 
corroborated by her son, a boy 10 or 11 years old, which was expressly 
contradicted by the testimony of the husband and the notary, the latter 



187i^.] Spurgin v. Traub et al. 171 

Opinion of the Court. 

also testifying that he read over the mortgage to her, and upon being 
asked if she understood the contents, replied in the affirmative; and the 
proof showing that the mortgagee was not present, and failing to show 
the least degree of bad faith on his part: Held, that the proof fell short 
of that required in such a case to authorize the relief sought; and that if 
the wife did not understand the mortgage, it was her duty to have under- 
stood it before she suffered it to be delivered as her valid mortgage into 
the hands of an innocent mortgagee ; and if she did not make use of rea- 
sonable diligence to acquaint herself with the facts, equity would not re- 
lieve her as against the mortgagee, who was without fault. 

3. And it seems, where a person, without any fraud on his part, takes 
a mortgage in good faith from a husband and wife to secure a just debt, 
the court would hesitate long before they would set it aside, even if there 
was undoubted proof that its execution by the wife was procured through 
the fraudulent misrepresentations of the husband, and that the wife had 
used due diligence to ascertain the contents of the mortgage. 

4. Acknowledgment of deed — hy married woman, under act of 186&. 
Under the act of 1869, the acknowledgment of a married woman may be 
the same as if she were sole. 

Appeal from the Circuit Court of Tazewell county ; the 
Hon. Charles Turner, Judge, presiding. 

Messrs. Stevenson & Ewing, for the appellant. 

Mr. B. S. Prettyman, for the appellees. 

Mr. Justice Sheldon delivered the opinion of the Court : 

On the 5th day of February, 1870, William Spurgin, the 
appellant, having a claim against Louis Traub and one Her- 
big, who were in partnership as brewers, of about ^800, for a 
car load of malt sold to them, which they had made default 
in paying, it was agreed between Spurgin and Traub that if 
the former would extend the time of payment of the claim, and 
sell and deliver to Traub & Herbig another car load of malt 
for $800, Traub & Herbig would make their two notes, for 
$800 each, to Spurgin, payable at certain future times, and 
that Traub and his wife, Maria Traub, to secure the payment 
of the notes, would execute to Spurgin a mortgage upon lot 
six, in a certain addition to Pekin, in this State, the title to 



172 Spurgix v. Teaub el al [Sept. T., 

Opinion of the Court 

which was in the said Maria, and which she and her husband 
occupied as a homestead. 

The notes and mortgage were accordingly executed on the 
5th of February, 1870, and the car load of malt delivered. 

One Sawyer having a prior mortgage, executed by Traub 
and his wife on the same lot, for $300, Spurgin purchased the 
same, and filed his bill for the foreclosure of both mortgages. 

Thereafter, Maria Traub filed her bill in chancery to have 
the mortgage to Spurgin cancelled, the bill alleging her 
inability to read or write English, and that her execution of 
the mortgage was fraudulently procured through collusion 
between Spurgin, her husband, and one Purple, the notary 
public who took her acknowledgment; that by means of the 
fraudulent misrepresentations of the two latter, that the mort- 
gage was upon two lots in Pekin whereon was situate the 
brewery owned by her husband and Herbig, in partnership, 
she was induced to execute tlie mortgage under the supposi- 
tion that it was on the two brewerv lots, and not on her 
homestead, lot six, upon which latter she would not have 
executed a raortoao-e ; the bill further alle";in<r a defect in 
taking her acknowledgment, in that she was not truly in- 
formed of the contents of the mortgage, nor exaniined sepa- 
rate from her husband. 

The court below consolidated the two suits, and decreed a 
foreclosure of the Sawyer mortgage, and a cancellation of tiie 
mortgage to Spurgin. Spurgin a})peals. 

The only testimony in support of the bill is that of Mrs. 
Traub and lier boy. The sum of her testimony is, that she 
could not read or write English; that, at the time the mort- 
gage was executed, she inquired of her husband what propertv 
it was on, and lie inlbrined iier the brewerv jiropertv ; that 
Bhe made the same inquiry of iier boy, and he infornied her 
the same; that Purple, the notary juiblie, read the mortgage 
over to her, but she could not understand it; that she imper- 
fectly understood what Purple said; that she executed the 
mortgage under the belief that it was on the brewery lots. 



1872.] Si'URGix V. Tkaub et al. 173 

Opinion of the Court. 

and not on her homestead. Her boy, who was at the time 
between 10 and 11 years of age, corroborated his mother as 
to the statement of both his father and himself to her, that 
the mortgage was on the brewery property. He says he did 
not read the mortgage himself. 

Lonis Traub, the husband, denies making any statement to 
his wife that the mortgage M'as on the brewery property. He 
states that his wife inquired what the mortgage was for, and 
he told her it was for malt for the brewery; that that was the 
only inquiry she made; that she never asked him if the mort- 
gage was on the brewery or on the homestead. 

Purple, the notary public who took the acknowledgment, 
testifies that he read over the mortgage to Mrs. Traub, and 
inquired of her if she understood the contents of it, and she 
answered in the affirmative. He says she spoke to her boy, 
"William, and, he thinks, told him to get out of the way as she 
approached the table to sign the mortgage, and he immedi- 
ately got out of her way ; that the boy did not read the mort- 
gage ; that the mother did not ask the boy anything about 
the mortgage, and the boy did not say anything to her about 
the same; that he would have heard any conversation between 
them. 

Spurgin was not present at the time of the execution of the 
mortgage, and there is nothing in the testimony to indicate, 
in the least degree, any want of entire good faith, on his part, 
in taking the mortgage. 

A court will not set aside a deed on the ground of fraudu- 
lent misrepresentations, without the clearest proof of the same. 
1 Story Eq. Jur. sec. 200. 

The measure of proof in this case falls short of that re- 
quired. The testimony of Mrs. Traub, as to the misrepre- 
sentation made by her husband, is counterbalanced by his 
own testimony in denial thereof. The testimony of her boy, 
William, upon the same point, and also as to his own repre- 
sentation, is to be considered in view of his tender years, and 
that his testimony may have been influenced by the repeated 



174 Spurgin v. Traub et ah [Sept. T., 

Opinion of the Court. 

conversations he admits his mother had with him upon the 
subject. 

The statements of them both, that the boy also represented 
that the mortgage was on the brewery property, are affected 
by the testimony of Purple, the notary public, that no con- 
versation was had between them in respect to the mortgage. 

Mrs. Traub testifies that she did not understand the mort- 
gage. But it was her business to understand it before she 
suffered it to be delivered as her valid mortgage into the 
hands of an innocent mortgagee, who parted with his prop- 
erty on its faith. A person is not to be admitted to avoid his 
deliberately executed deed, where the grantee is without fault, 
on the allegation that he did not understand it. Mrs. Traub 
had resided in Pekin 21 years. She understood English, to 
some extent. Still, if she could not read the mortgage her- 
self, and did not understand, from the reading of it to her by 
the notary public, what property it conveyed, siie should have 
made use of reasonable diligence to acquaint herself with 
that fact before executing the mortgage. She says she made 
inquiry of her husband, but as she made the same inquiry 
also of her boy afterward, that would imply distrust of her 
husband; and she says the reason she inquired of her boy. 
was that she thought she would be deceived. But it was 
sheer negligence and folly to resort to, and rely upon, such a 
source of information — a boy, between 10 and 1 1 years of age, 
who had not read the mortgage. Why did she not inquire of 
the notary })nblic present, a disinterested oflieer of the law, 
to whom she imputes no misconduct in iier testimony, or 
signify to him that she did not understand the contents of the 
instrument, so that he might have had them made known to 
her through an interpreter, if necessary? Or why not have 
recourse to some other reliable source of information? It was 
her fault not to use the nieans of knowledge within her reach, 
and anv loss or injury in such a case may properly be imj)uted 
to her own negligence and indiscretion. Courts of equity do 
uot sit for tiie purpose of relieving parties, under ordinary 



1872.] Shackei.ton et al. v. Lawrence. 175 

Syllabus. 

circumstances, who refuse to exercise a reasonable diligence 
and discretion. 1 Story Eq. Jur. sec. 200 (a). 

It is an alarming proposition, as regards the security of 
titles, that a married woman, after having executed a deed in 
apparent conformity with all the requirements of the law, can 
have the same set aside, on making proof of fraudulent mis- 
representations to her by her husband and son of the contents 
of the deed, to which misrepresentations the grantee was in 
nowise privy. 

Even were the proof of such misrepresentations undoubted, 
and were there no evidence of the lack of diligence in ob- 
taining knowledge of the contents of the mortgage, we should 
have hesitated long before relieving against and annulling it 
in such case. 

As to the acknowledgment, the certificate thereof appears 
to be conformable to the statute; there is no sufficient proof 
to impeach it, and, besides, the acknowledgment of the deed 
of a married woman may be the same as if she were sole. 
Laws 1869, p. 359. 

The decree of the court below must be reversed, and the 
cause remanded for further proceedings in conformity with 
this opinion. 

Decree reversed. 



Isaac Shackelton et al. 

V. 

John Lawrence. 

1. Warrantt — insttviction as to eg'ect of representation. Upon the trial 
of an issue on a plea of failure of consideration, arising from a breach of 
warranty by the plaintiff as to the quantity of land sold in growing crops, 



176 Shackeltox et al. v. Lawrence. [Sept. T., 

Statement of the case. 

the court told the jury, in an instruction, that if the assertions of the plain- 
tiff were the expression of the judgment, opinion or belief of the plain- 
tiff, and the crops were open to inspection, and the defendants might, by- 
ordinary prudence, have discovered the amount of the crops, such asser- 
tions, altliough untrue, were no defense: Held, that the instruction was too 
broad. It should have been that, if the statements of the plaintiff were 
made only as a matter of opinion, and not as a representation of a fact 
upon which the defendants could rely, and made as an inducement to the 
purchase ; and if, further, the parties had equal means of information as 
to the truth of the assertion, tlien the defense would fail. 

2. Same — instruction based on wrong theory. Where the issue being 
tried was whether certain representations made upon a sale constituted a 
warranty, and if so, wliether it was broken, an instruction based upon the 
theory that the issue was one of fraud, was held erroneous, as necessarily 
tending to mislead the jury. 

Appeat> from the Circuit Court of DeKalb couuty ; the 
Hon. Theodore D. Murphy, Judge, presiding. 

This was a suit, by the appellee against the appellants, upon 
a promissory note given for a contract for the sale of land and 
the crops thereon. The defense was, failure of consideration 
in this, that plaintiff, at the time of making tlie contract, rep- 
resented and warranted that a crop of wheat was growing on fifty 
acres of the land; that fourteen bushels of barley had been 
sown, and a quantity of oats and potatoes had been put in, 
whereas there was only thirty acres in wheat, etc. The sec- 
ond instruction given by the court for plaintiff is as follows: 

"An assertion by the plaintiff, Lawrence, at the time of the 
sale of the land and crops in question, as to the amount of 
such crops, although positively made and relied on by the de- 
fendants, or either of them, and not in fact true, is not neces- 
sarily fraudulent in law. And if the jury believe from the 
evidence that such assertions, if made at such time, were the 
expression of the judgment, opinion or belief of the plaintiff, 
and that the crops sold were open to the inspection of the de- 
fendants, and that, by ordinary prudence and precaution, they 
would have discovered and known at the time of the purchase 



1872.] Shackelton ei at v. Lawrence. 177 

Opinion of the Court. 

what the amount of the said crops was, then such false asser- 
tions, if made, are no ground of defense in this suit." 

Mr. Charles Kellum, for the appellants. 

Messrs. Divine & Pratt, for the appellee. 

f Mr. Chief Justice Lawrence delivered the opinion of the 
Court : 

I' The second instruction given by the court for the appellee 
should not have been given. The pleas set up a failure of 
consideration because of a warranty by the plaintiiF as to the 
quantity of land in growing crops. 

This instruction is based upon the theory that the issue to 
be tried was one of fraud, and necessarily tended to mislead 
the jury. The latter part of the instruction is also too broad. 
It tells the jury that if the assertions were the expression of 
the judgment, opinion or belief of the plaintiff, and the crops 
were open to inspection, and the defendants might, by ordi- 
nary prudence, have discovered the amount of the crops, such 
assertions are no defense. 

The instruction should have been that, if the statements of 
the plaintiff were made only as statements of his opinion, and 
not as representations of a fact upon which the defendants 
could rely, made as an inducement to the purchase ; and if, 
further, the parties had equal means of information as to the 
truth of the assertion, then the defense would fail. 

For the error in this instruction, upon which the case wholly 
turned, the judgment must be reversed and the cause re- 
manded. 

Judgment reversed. 



12 — 65th III. 



178 Templetox v. Hayward. [Sept. T., 

Statement of the case. 



John A. Templeton 

V. 

George E. Hayward. 

1. Pleadino — assignment of a note — how put in issue. lu an actioa of 
assumpsit on a promissory note, a plea of non-assumpsit verified by afli- 
davit does not, under the statute, put in issue the assignment of the note, 
but merely the execution of the note. To raise such an issue the defend- 
ant should, under the general issue, state in an afHdavit attached thereto, 
specifically, that the payee did not assign the note, or that the signature to 
the assignment was not his. 

2. SAME^presumpiion. Until the assignment is thus questioned the 
fact that the name of the payee is apparently attached thereto is suflicient, 
and it must he presumed tlie signature is genuine 

8. While it may be usual in executing instruments by corporations, for 
the officer or agent to sign his name under that of the companj- as evidence 
that the contract is executed by the person having authorit}-, still such a 
signature is not essential. And in an action on a promissorj'- note by an 
assignee against the maker, where the payee is a corporation, if the decla- 
ration avers that the company, by the name emploj-ed, assigned the note, 
until questioned in a legal manner it will be presumed that the assign- 
ment was valid. 

Appeal from the Circuit Court of Warren county : the 
Hon. Arthur A. Smith, Judge, presiding. 

This action was brought by Hayward again.-^t Templeton, 
on tiie following promissory note : iNTonmouth, 111., Nov. 
27th, 1869. Nine months after date for value received I 
promise to pay to the Queen of the Harvest Manufacturing 
Company, or bearer, six hundred doUars, at the 1st National 
Bank of Monmouth, 111. 

$600.00. John A. Tkmpf.eto.v. 

On the back of the note was the following indorsement: 

Pay to the order of George E. Hayward, Queen of the 
Harvest Manufacturing Co., without recourse. 



1872.] Templeton v. Hayward. 179 

Opinion of the Court. 
Mr. William Marshall, for the appellant. 
Messrs. Stewart & Phelps, for the appellee. 
Mr. Justice Walker delivered the opinion of the Court : 

This was an action of assumpsit, brought by appellee 
against appellant, on two promissory notes. On a trial in 
the court below the jury found the issues for the plaintiff, 
and assessed his damages at the amount of the notes and 
interest. A motion for a new trial was entered but was over- 
ruled by the court, and a judgment was rendered on the 
verdict. This appeal is prosecuted to reverse the judgment. 
It appears that on the trial in the court below plaintiff entered 
a nolle prosequi to the second count of his declaration. This 
only leaves the first count and the note described therein in 
question. 

The plea of non-assumpsit, verified by affidavit, was filed 
io the first count, and before the note was offered in evidence 
its execution was satisfactorily proved. But it is objected 
that the execution of the assignment was not proved before 
it was introduced in evidence. In this case there was no plea 
verified by affidavit denying the signature of the assignor 
•of this note. The fifty-ninth section of the practice act, 
R. S. 421, requires that, to render such proof necessary, there 
must be such a plea. If the defendant wishes to put in issue 
the assignment of the note, he should, under the general issue, 
state in an affidavit attached thereto, specifically, that the 
payee did not assign the note, or that the signature to the 
:assignment was not his. In this manner the plaintiff can be 
apprised of the defense relied upon, and can prepare to meet it. 

But when the plea of non-assumpsit is filed and an affida- 
vit simply that it is true, the plaintiff can not know from the 
plea whether it is the signature to the note or to the assign- 
ment that is denied. When he proves the execution of the 
-note, then defendant would probably say that he denied the 



180 Templeton v. Haywaed. [Sept. T., 

Opinion of the Court. 

signature to the assignment. If, on the other hand, the plain- 
tiff only prove the genuineness of the signature to the assign- 
ment, the defendant might say he intended to deny the execu- 
tion of the note, thus rendering it necessary to prove both, 
when but one is denied. Such a practice would lead to ex- 
pense and inconvenience, when no beneficial purpose can be 
subserved. We are therefore of the opinion that the verified 
plea only put in issue the execution of the note, and on the 
proof made, the note was properly admitted in evidence. If 
the common law rule prevailed in this State, then the execu- 
tion of the assignment should have been proved, but under 
the statute, as the signature of the payee was apparently 
attached to the assignment, it was sufficient. The declaration 
avers that the company, by the name employed, assigned the 
note. It had the right to adopt that signature, and the dec- 
laration avers it did, and if such was the fact then the assign- 
ment was valid, and such must be the presumption until it is 
questioned in a legal manner. 

Whilst it may be usual, in executing instruments by corpo- 
rations, for the officer or agent to sign iiis name under that of 
the company as evidence that it is executed by the person 
having authority, still such a signature is by no means essen- 
tial. Were such a body to adopt a peculiar kind of type for 
the name of the company, and stamp or print instead of 
writing it, no objection is seen to such a mode of binding the 
body. In such a case the only inquiry would be, whether the 
signature was placed there by authority and that it was 
genuine. Until questioned in the mode prescribed by statute, 
when it is averred the company used the signature appearing 
to the instrument for the purpose of giving binding force to 
the contract, it is prima facie good. Perceiving no error in 
this record the judgment of the court below is affirmed. 

Judgment affirmed. 



1872.] Scott v. Waller et al 181 

Statement of the case. 



Matthew T. Scott 

V. 

[ James B. Waller et al. 

1. Abatement — defendant sued out of Ms county. In an action against 
a defendant, brouglit in the Superior Court of Cook county, the defendant 
pleaded, in abatement of the writ, in substance, that he was, before and at 
the time of the commencement of the suit, and at all times thereafter, a 
resident of McLean county, and was not a resident of Cook county, and 
that he was not found, nor served with process, in Cook county, nor else- 
where than in the county of McLean, and that the said plaintiffs were not, 
at the commencement of said action, residents of said county of Cook, nor 
were they then residents of such county : Held, on demurrer to the plea, 
that it was not a plea to the jurisdiction of the court, but in abatement of 
the writ only, founded on the fact that the plaintiffs were not residents of 
the county from which it issued, and as such was good under the act of 
1861. 

2. Process — when it may issue to another county for service on sole de- 
fendant. Under the statute of 1861, relating to practice, where there are 
several plaintiffs they must all reside in the county in which they sue, in 
order to justify the sending of process to another county for service on a 
sole defendant who does not reside in the county where sued. Where they 
do not all reside in one county, the sole defendant must be sued in the 
county of his residence. 

3. Abatement— jMC?5'meraf on demurrer to good plea in abate^nent. The 
proper judgment upon overruling a demurrer to a plea in abatement to the 
writ is, that the writ be quashed, and consequently a dismissal of the suit. 

Appeal to the Superior Court of Cook county; the Hon. 
Lambert Tree, Judge, presiding. 

This was an action of assumpsit, by James B. Waller and 
Alexander J. Alexander, executors, etc., against the appellant, 
upon a promissory note. 

The appellant, defendant below, filed a plea in abatement, 
which, after the proper entitling, was as follows: 

"And the defendant, Matthew T. Scott, in his own proper 
person, comes and says that this court ought not to have or 



182 Scott i-. Waller et al [Sept. T., 

Opinion of the Court. 

take further cognizance of the action aforesaid, because, he 
says, that before and at the time of the commencement of this 
suit, the said defendant was, and at all times since the com- 
mencement of this suit the said defendant has been, and still 
is, a resident of the county of McLean, in the State of Illi- 
nois, and did not, at the commencement of said suit, nor does 
he now reside in said county of Cook; nor has he been found 
nor served with process in said action in said county of Cook, 
or elsewhere than in said county of McLean. And the de- 
fendant further avers that the said plaintiffs were not, at the 
commencement of said action, residents of said county of 
Cook, nor are they now such residents of said county. And 
this the defendant is ready to verify, wherefore he prays judg- 
ment whether this court can or will take further cognizance 
of the action aforesaid. '' 

Messrs. Dent & Black, for the appellant. 

Messrs. Moore & Caulfield, for the appellees. 

Mr. Justice Brkesk delivered the opinion of the Court: 

This is an appeal from the Superior Court of Cook county. 
The onlv question made on the record is as to the validity of 
defendant's plea, which botli parties agree in dmomiuating a 
plea to the jurisdiction of tiie Superior Court, whicii, under 
the authority of Kenncij et n.v. v. (irccr, 13 111. 4.32, it is not, 
but simply a plea in abatement, gtnng to the writ, and to that 
only. 

The plea avers, in substance, that tiie defendant was, before 
and at the time of the commencement of the suit, and at all 
times thereafter, a resident of McLean county, and was not a 
resident of Cook county, and that he was not found nor served 
with process in Cook county, nor elsewhere than in the county 
of McLean, and tiiat the said plaintiffs were not, at the com- 
mencement of said action, residents of said county of Cook, 
nor are they now residents of sai<l county. 



1872.] Scott v. Waller et al. 183 

Opinion of the Court. 

The plaintiffs demurred generally to this plea, which the 
court sustained, and defendant electing to abide by his plea, 
judgment was rendered against him for the amount of the 
note and interest to recover which the action was brought. 

Does this plea bring the case within the act of 1861 ? 

The first section of that act is as follows : 

"It shall not be lawful for any plaintiff to sue any defend- 
ant out of the county where the latter resides or may be found, 
except that in every species of personal actions in law or 
equity, where there is more than one defendant, the plaintiff 
commencing his action where either of them resides, may have 
a writ or writs issued, directed to any county or counties where 
the other defendants, or either of them, may be found : Pro- 
vided, if a verdict shall not be found or judgment rendered 
against the defendant or defendants resident in the county 
where the action is commenced, judgment shall not be ren- 
dered against those defendants who do not reside in the county^ 
unless they appear and defend the action." 

Section 3 is as follows: 

" The provisions of this act shall not apply to any case 
where the plaintiff is a resident of, and the contract upon 
which the action is brought shall have been actually made in 
the county in which the action is brought, nor to any proceed- 
ing under the attachment laws of this State." Laws of 1861, 
p. 180. 

It is admitted by appellees that, by force of section 27, ch. 
90, R. S. 1845, "plaintiff" is to be understood as meaning 
"plaintiffs," but they insist the plea is defective in not aver- 
ring that neither of the plaintiffs was a resident of Cook county, 
they claiming, if either of the plaintiffs was such resident, the 
action was properly brought in Cook county. 

But, to bring up this question, was it proper to demur gen- 
erally to the plea? 

The demurrer admits all the facts which are well pleaded, 
and the plea states all the facts required to make a good plea 
in abatement. It avers the plaintiffs were not residents of the 



184 Scott r. Wai.i.eu et o?. [Sept. T., 

Opinion of tiie Court. 

county of Cook when they brought their action. The demur- 
rer admits they were not, consequently, according to the stat- 
ute, the writ could not have issued from Cook county. 

It would seem, if appellees wished to present the question 
they are now urging, they should have replied to the plea that 
one of the plaintiffs was, at the time, etc., a resident of Cook 
county. A demurrer to the replication would have brought 
the question now made directly before the court. 

But in whatever mode the question may be presented, we 
are of opinion it is the clear intention of the statute that the 
parties suing under the statute must be residents of the county 
in which the suit is brought. If this were not so, then where a 
note was made by a resident of Alexander county, payable to two 
persons, one of whom is a resident of the same county, and the 
other a resident of Cook county, an action on the note could 
be brought in Cook county. This the statute could not have 
intended. Where the plaintiffs do not reside in the same 
county, then the action must be brought against the defendant 
in the county of his residence. 

An objection is made by appellees to the plea. They claim 
it is a plea to tlie jurisdiction of the court, and should have 
pointed to some court which had jurisdiction. 

It is not a plea to the jurisdiction of the court, but in 
abatement of the writ only, founded on the fact alleged in it, 
that the plaintiffs were not residents of the county whence it 
issued. Kenney et ux. v. Greer, 13 111. 432; Humphrey et al. 
V. riiillips, 57 ib. 132. 

The judgment would be a quashal of the writ, and, conse- 
quently, a dismissal of the suit. 

For the reasons given, the judgment is reversed and tlie 
cause remanded, with directions to the circuit court to quash 
the writ and dismiss the suit. 

Judgment revei'sed. 



1872.] MuNsoN V. Crawford et al 185 

Opinion of the Court. 



Charles E. Munson 

V. 

David M. Crawford et al. 

Assessments and taxation in scTiool districts — of the situs of personal 
property — construction of the act of 1869. The first and second sections of 
the act of the 29th of March, 1869, entitled "An act relating to assessments 
and taxation in school districts-," can not be construed so as, by implica- 
tion, to repeal the provision in the fourth section of the act of the 12th of 
February, 1853, which requires that the personal property' of " banks or 
bankers, brokers, stock-jobbers, insurance or other companies, merchants 
and manufacturers, shall be listed in the county, town or district where the 
business is usually done." 

Writ of error to the Circuit Court of Whiteside county ; 
the Hon. William W. Heaton, Judge, presiding. 

Messrs. Dinsmoor & Stager, for the plaintiff in error. 

Mr. J. E. McPherran, for the defendants in error. 

Mr. Justice Scott delivered the opinion of the Court : 

This bill was to enjoin the collection of a school tax 
levied on a stock of goods owned by the defendants in error, 
merchants, whose place of business is in district No. 3, in the 
township of Sterling. The individual members of the firm 
all reside in school district 8, in that township. It is not 
denied that the property is subject to taxation, but it is in- 
sisted that it was illegally assessed for school purposes in 
school district No. 3, where the property was situated, but 
should have been assessed in district No. 8, where the parties 
reside. 

The question involved depends upon the construction that 
shall be given to the first and second sections of the act of 
the 29th of March, 1869, which are as follows: 



186 MuNSGN V. Crawford et al. [Sept. T.^ 

Opinion of the Court. 

"Section 1. It shall be the duty of town assessors, when 
making assessments of personal property, to designate the 
number of the school district in which each person so assessed 
resides, which designation shall be made by writing the num- 
ber of such district opposite each person's assessment of per- 
sonal property, in a column provided for that purpose in the 
assessment roll returned by the assessor to the county clerk. 

"Sec. 2. It shall be the duty of the county clerk to copy 
said numbers of school districts, as returned by the assessor, 
into the collector's book, and to extend the school tax on each 
person's assessment of personal property according to the rate 
designated by the directors of the school district in which 
said person resides." 

It is urged that this act provides a new mode for the assess- 
ment of the property of merchants, and supersedes the act of 
the 12th of February, 1853. It is provided, in the fourth 
section of the latter act, that "personal property, moneys and 
credits, except such as is required to be listed otherwise, shall 
be listed in the countv, town or district where the owner re- 
sides. The property of banks or bankers, brokers, stock- 
jobbers, insurance or other companies, merchants and manu- 
facturers, shall be listed in the county, town or district where 
the business is usually done." 

It will- be observed that the act of 18G9 does not, by any 
express words, repeal the provisions of the act of 1853 in 
regard to the assessment of the personal property, and if it is 
repealed at all, it is by implication or the recasting of the law 
on the sauic subject. 

The repealing of statutes by mere implication is not favored 
by the courts. When there are two statutes on the same sub- 
ject, it is rather the duty of the court, if the same can be 
done without doing violence to the plain meaning of the words 
used, to so construe them that both may stand. There is no 
difViculty in so construing these statutes. 



1872.] MuNSON V. Crawford et al. 187 

Opinion of the Court. 

In view of the former legislation in regard to the duties of 
the county clerk, in extending upon the collector's book the 
school tax for the several districts required to be levied by 
the directors, the act of 1869 Avas, doubtless, intended to sim- 
plify and aid him in the performance of those duties. Under 
the provisions of the statute then in force, there was found to 
be great difficulty in extending the school tax for the various 
districts, for the reason that the residence of the parties liable 
for such tax could not be readily ascertained. By the first 
section, it is made the duty of the town assessor to designate 
the number of the district, on the assessment roll, in which 
each person so assessed resides, which Avould greatly facilitate 
the labor of the county clerk in extending the tax for school 
purposes, and would enable him to perform that duty with 
more accuracy than could otherwise be attained. This is be- 
lieved to be the object the legislature had in view in the pas- 
sage of the act of 1869. Manifestly, if it had been the inten- 
tion to make any change in the place where personal property, 
belonging to incorporated companies or mercanti-le firms, 
should be listed, more apt words would have been used to 
express that intention. 

Personal property usually follows the residence of the owner, 
and is there taxable. There are, however, exceptions to the 
general rule. It is not strictly true as to personal property 
owned by incorporated companies and mercantile firms by a 
common title, and not by distinct and separate interests. It 
is a matter of common observation, within the knowledge of 
every one, that the individuals composing such companies or 
firms do not, in every case, all reside where the property is 
situated, but are often widely separated. It would be im- 
practicable to separate the property, and make a separate 
assessment, so that it would follow the residence of the owner, 
for the purposes of taxation, and, for obvious reasons, there 
never has been any provision of law for taxing the mere in- 
terest of one member of the firm in the common property of 
the company. In such cases, we entertain no doubt that it 



188 MuNSON f. Crawford et al. [Sept. T., 

Opinion of the Court. 

is entirely competent for the legislature to fix the si<ws of per- 
sonal property, belonging to incorporated companies and mer- 
cantile firms, for the purpose of taxation. This was done by 
the act of 1853, and it is not repealed by any fair construc- 
tion that can be given to the act of 1869. The plain meaning 
of the act of 1869 is that it was intended to apply to assess- 
ments made on property belonging to individuals, which, as 
a general rule, follows the residence of the owner, and is there 
taxable, and not to property belonging to incorporated com- 
panies, banks, banking associations and mercantile firms, the 
situs of which had been previously fixed for the purposes of 
taxation by the several acts of the legislature. The act of 
1867, which declares that the shares of stockholders in national 
banks shall be assessed in the district where such bank is lo- 
cated, and not elsewhere, whether such stockholders reside in 
such district or not, is in harmony with the act of 1853; and 
it would be a very singular construction to give to the act of 
1869 to hold that, by mere implication, it repeals all previous 
statutes which fix the situs of personal property of banks, 
banking associations, insurance and other companies, mei- 
chaiits and manufacturers, for the pur})0se of taxation, ^^'e 
can not believe the legislature ever intended that the act of 
1869 should have any such construction. 

For the reasons given, we are of opinion that the decree 
of the circuit court was erroneous, and must be reversed and 

the bill dismissed. 

Decree reversed. 



1872.] Beygeh v. City of Chicago, etc. 189 

Syllabus. 



Beygeh v. City of Chicago, 

and 

Ward v. same. 

1. Special assessment — to make up amount not collected on original 
assessment. Where ajudgment was sought upon a new special assessment to 
make up the amounts which the city had failed to collect of the original 
assessment for improving a street, but the papers and proceedings on the 
original were not introduced in evidence : Held, that this court could not 
determine the validity of the new proceeding, so far as it depended upon, 
the character of such original proceedings, because of the absence from 
the record of all evidence pertaining to them. 

2. Same — sam£ objections heard as on certiorari. On an application for 
judgment against city lots for delinquent special assessments, where the 
objectors introduced in evidence under appropriate objections a certified 
copy of the record of the proceedings, it was held that they had the same 
right to challenge their validity as they would upon a certiorari and thus 
defeat the application. 

3. Publication — sufficiency of certificate of. Where the publisher of a 
newspaper gave the following certificate of the publication of certain 
notices required in a proceeding to make and confirm certain special 
assessments by a city: "This certifies that the appended corporation 
notice has been published in the Chicago Republican, the corporation 
newspaper of the city of Chicago, county of Cook, and state of Illinois, 
six days consecutively, excepting Sundays and holidays, commencing on 
the 24th day of September, A. D. 1869:" Held, that the certificate was 
fatally defective in not stating the last day of the publication, and that 
owing to the exception thrown in, the certificate could not be aided by 
any inferences. 

Appeal from the Superior Court of Cook county ; the 
Hon. Joseph E. Gary, Judge, presiding. 

Mr. William Hopkins, Mr. Thomas J. Tuley, and Messrs. 
Ward & Stanford, for the appellants. 



Mr. M. F. Tuley, for the appellee. 



190 Beygeh v. City of Chicago, etc. [Sept. T., 



Opinion of thie Court 



Mr. Justice McAllistee delivered the opiuion of the 
Court : 

These cases both arise out of the same record and involve 
the same questions. They were brought to, heard and decided 
at the September term, 1870, of this court, and an opinion 
filed. Since wiiich time we have had occasion to fully and 
thoroughly examine some of the questions supposed to be 
involved, and partially discussed, in that opinion ; and. having 
:arrived at a conclusion not altogether in harmony with the 
views expressed in the former opinion, we have deemed it 
proper to order a rehearing, not for the purpose of changing 
the judgment, but for that of a modification of such views. 

It appears from the record that at the March term, 1870, 
of the Superior Court of C'hicago, an application was made on 
behalf of the city, for judguient agaiust the real estate of 
appellants and others, upon a new special assessment warrant 
to make up the amount which the city had failed to collect 
of an original assessment for curbing, paving, etc., a portion 
of Halsted street in said city. To which application the 
appellants filed various objections. Upon the hearing, the 
objectors introduced in evidence certified copies of the entire 
proceedings for levying the new assessment, but neither party 
introduced any pertaining to the original. The court below 
overruled the objections and gave judgment in fixvor of the 
city and against the real estate, the owners of which brought 
the case to this court by appeal. 

Upon a careful revision of the record we are now satisfied, 
in view of tlie decision in the cases of the Union Building 
Association v. Qity of Chicago, 61 111. 439, and Workman et 
at. V. The Same, ib. 463, that the question of the validity 
of the new assessment to make up the deficiency of a former 
original assessment, so far as it is dependent upon the 
character of such original proceedings, can not properly 
be determined in this case, because of the absence from the 



1872.] Beygeh v. City of Chicago, etc. 191 

Opinion of the Court. 

record of all evidence pertaining to them. Nor shall we 
express any opinion in this case, as respects the onus probandi. 

But, inasmuch as the objectors introduced in evidence, 
under appropriate objections, a certified copy of the record of 
the proceedings in the new assessment, they have the same 
right to challenge their validity as they would upon certiorari. 

It appears from such copies that the certificates of the 
printer of the publication of the notices of the completion of 
the assessment, and of the application by the commissioners 
to the common council for confirmation of the assessment, 
are fatally defective. That of the publication of the notice 
of the completion of the assessment, is thus: "This certifies 
that the appended corporation notice has been published in 
the Chicago Republican, the corporation newspaper of the 
city of Chicago, county of Cook, and state of Illinois, six 
days consecutively, excepting Sundays and holidays, commenc- 
ing on the 24th day of September, A. D. 1869. 

Chicago, Oct. 1st, 1869. S. W. Powell, Publisher." 

The other certificate is precisely like this, except that it 
says " commencing with Friday, the 8th day of October, 1 869." 

The advertisement of these notices in the corporation 
newspaper is imperatively required by the charter. 

The general statute of the State provides that ''When any 
notice or advertisement shall be required by law, or under the 
order of any court, to be published in any newspaper, the 
certificate of the printer or publisher, with a written or printed 
copy of such notice or advertisement annexed, stating the 
number of times which the same shall have been published, 
aiixd the dates of the first and last papers containing the same, shdAX 
be sufficient evidence of the publication therein set forth." 

This statute has been in force over a quarter of a century, 
is plain, unambiguous, and easy of compliance. 

In these certificates the printer not only fails to state the 
date of the last paper containing the advertisement, but throws 
into it, after the words " six days consecutively," the words, 
''excepting Sundays and holidays.'^ So that, conceding 



192 Beygeh v. City of Chicago, etc. [Sept. T., 

Opinion of the Court. 

that we might, in a proper case, depart from the literal 
reading of the statute requiring the certificate to state the 
date of the last paper containing the advertisement, and 
indulge in inferences, we are here precluded from doing so by 
the exception. The counsel for the city insists that we should 
hold that the printer intended legal holidays only, and that the 
court can take judicial notice when they occur. There is no 
basis for any such presumption. The law has nowhere made 
it the duty of the publisher of the corporation newspaper of 
Chicago to determine any such question. The paper in 
question was designated, under the authority of the city 
charter, as the corporation newspaper; and in which all the 
various notices required by the charter should be published. 
It is a sort of permanent selection for a long period of time. 
One would naturally suppose that the very first thing that the 
publisher of the paper so designated would do, would be to 
ascertain what the law demanded in order to constitute a 
valid certificate. This publisher, failing in this reasonable 
precaution, and having issued these and large numbers of 
other certificates like them, as we judicially know, thus be- 
traying either ignorance in respect to his duties, or reckless 
indifference in so important matters, does not seem to be a 
person whose judgment, as to which holidays are legal and 
which are not, ought to have much weight. If the law con- 
fided to him the decision of that question, his judgment might 
be conclusive ; but as it does not, we can not know what days 
he allowed for holidays, and therefore can not determine from 
the facts stated in the certificate what was the date of the 
last paper containing the advertisement. 

The judgment of the court below is reversed, and the 

causes remanded. 

Judgment reversed. 



1872.] GuNDERSON V. Peterson. 193 

Statement of the case. 



Gabriel Gunderson 

V. 

SiGWALD Peterson. 

Negligence — whether injury resulted from negligence or accident. The 
plaintiff, while in defendant's service as mate of a schooner, received a 
personal injury from the breaking of a mast, whereby he fell therefrom 
upon the deck. In a suit to recover damages, the only negligence charged 
to the defendant was that the mast, before the accident, was twisted to a 
certain distance, and, therefore, unsafe, while the proof showed that the 
defects complained of were at least 12 feet from the place where the mast 
broke, and that there was not the slightest appearance of rottenness or 
decay at the place of the breaking, and that the accident was caused by a 
strong wind aloft, while there was only very little on deck: Held, that 
the plaintiff was not entitled to recover, and that the injury must be re- 
garded as one incident to the service. 

Appeal from the Circuit Court of Cook county; the Hon. 
John G. Rogers, Judge, presiding. 

This was an action on the case, by the appellee against the 
appellant, to recover for a personal injury received by the 
breaking of a mast owned by the appellant. The declaration, 
among other things, alleged, in substance, that in April, 1871, 
the defendant was the owner of the schooner Monitauk, en- 
gaged in sailing upon Lake Michigan, and that plaintiff was 
engaged as second mate upon her; that while so employed, 
and in the course of his duty, he ascended the mainmast, 
upon said schooner; that at the time he so ascended said 
mast, the same was, and for a long time had been, split, twist- 
ed, defective, unsafe and unfit for use ; that, by reason of its 
being so defective and unsafe, said mainmast broke, and, in 
consequence thereof, the plaintiff, although using all care, etc., 
fell from said mast down to and upon the deck of said schooner, 
and was greatly injured, etc. 

A trial was had, resulting in a verdict and judgment in 
favor of the plaintiff for 
13 — (JOTH III. 



194 GuxDERsoN V. PetePwSox. [Sept. T., 

Opinion of the Court. 

Messrs. Miller, Frost & Lewis, and Messrs. Story & 
King, for the appellant. 

Messrs. E. & A. VanBuren, for the appellee. 

Mr. Justice Thornton delivered the opinion of the Court : 

The injuries, for which this judgment was rendered, are 
alleged to have been caused by the breaking of a defective 
mainmast in a vessel owned by appellant. 

The proof shows that the mast was twisted to a certain dis- 
tance; but did this contribute to the injury? Conceding all 
the facts assumed, it is inconceivable that the accident re- 
sulted from the twist. If tiiis weakened the mast, and was 
the cause of the breaking, then the fracture would naturally 
be where the defect was. 

The evidence, however, is conclusive and uncontradicted 
that the deficiencies complained of were at least 12 feet from 
the place where tiie mast broke. At the point where the 
breaking occurred, the wood was perfectly sound, without the 
slightest appearance of rottenness or decay. The assumed 
defect, therefore, in one part of the mainmast, could not have 
made it break at a place where it was \vholly uninjured. 

At the time of the accident the wind was strong alott, and 
there was very little on deck; and the injury must be regarded 
iis one incident to the service. 

The verdict is manifestly against the evidence. 

The judgment is reversed and the cause renuxnded. 

Judgment reversed. 



1872.] Warner et ah v. Crandall. 195 

Opinion of the Court. 



John Warner et aL 



Robert E.. Crandall. 

1. Evidence — irrelevancy — instniction to exclude. A, B and C had been 
in partnership in a certain business, when it was agreed that D should go 
into the business on a trial of three months, and if he then liked it, he 
would buy in permanently, and become a partner, and A would go out, 
but if he did not so decide, then the old firm was to continue as before. 
During this three months A did certain work under a contract made by 
him with B, A testifying that the agreement was, that if D should deter- 
mine to go into the business, B and D would pay him for the work, 
B testifying that B and C were to pay him. On the trial of the suit of A 
against B and D, A testified further to his business dealings with the old 
firm, showing that he had not been fairly dealt with by B and C, who had 
formerly been conducting the business: Held, that this latter testimony 
M'as irrelevant to the issue, and that the court below erred in refusing to 
■instruct the jury to disregard it. 

3. Instkuction — should not submit question on probabilities. On the trial of 
.a cause where it became a material question whether the defendants, or one 
of the defendants and another, was to pay for the work and labor of the plain- 
tifl", the evidence being conflicting as to this, the court instructed the jury 
that if they considered it more probable, from all the facts and circumstan- 
•ces as shown by the evidence, that the contract was that the work was to 
be paid for by the defendants, then they should so find: Held, that the in" 
structiou was objectionable, as leaving the jury to speculate upon proba- 
bilities, when they ought to have been satisfied by the greater weight of 
•evidence. 

Appeal from the Circuit Court of Bureau county; the Hon. 
Edwin S. Leland, Judge, presiding. 

Mr. J. I. Taylor, for the appellants. 

Mr. S. M. Knox, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Court : 

This was an action brought by Crandall against Warner & 
Edwards, to recover for work and labor. The principal ques- 
tion was, whether Warner & Edwards or Edwards & Wood 
j were liable to pay for the services. 



196 Warnek et al. v. Craxdall. [Sept. T., 

Opinion of the Court. 

Edwards, Crandall & Wood, as partners, had been running 
a paint mill until the 1st of July, 1870, when there was an 
effort to bring AVarner into the concern, and it was arranged 
that he would go into the business for three months, until the 
1st of October, on trial, and if he then liked it, he would buy 
in permanently, and become a partner with Edwards, when 
Crandall would go out; but if AYarner then decided not to go 
into the business, then the old firm of Edwards, Crandall & 
Wood was to continue as before. 

AVarner did buy in permanently at the end of the three 
months. 

The work sued for was that of Crandall, performed in the 
business of the mill, during that three months. 

The agreement in regard to the labor Mas made between 
Crandall and Edwards — Crandall testifying, on the trial, that 
the agreement was that if, at the end of the three months, 
AA'^arner should go into the business permanently, then AA'^ar- 
iier and Edwards should pay him for said work, and Edwards 
testifying the agreement was, that Edwards and AA'^ood would 
pay for the work. 

On the trial Crandall gave testimony that he put into the j 
firm of Edwards, Crandall & AVood $1500; that Edwards & t 
AVood, who had been previously carrying on the business, rep- ' 
resented that it was a good paying business; that he soon 
found, after entering into the firm and paying his money, that 
the business was not paying, and that they were sinking money, 
and that it was agreed between him and Edwards that he 
(Crandall) should have the money back that he had put in; 
that he did not get his money, but had to take the notes of 
Edwards & Wood; that they had not paid the notes yet, and 
that they were both insolvent. 1 

To avoid the effect of this testimony, the defendants asked j 
this instruction : 

" That the matters of account and business between the 
plaintiff and Edwards & Wood have nothing to do with this 



i 



1872.] ^Y. U. E. R. Co. v. Wagxer ef al. 197 

Syllabus. 

suit; and whether the plaintiff was fairly or unfairly dealt 
with by Edwards & "Wood are mattters that the jury should 
exclude from their consideration in considering their verdict 
ill this cause."' 

The court refused to give the instruction. The testimony 
was irrelevant to the issue, and should have been excluded 
from the consideration of the jury. It was well calculated to 
prejudice the minds of the jury against Edwards, and in- 
cline them in favor of Crandall; and it was the right of War- 
ner & Edwards to have the jury cautioned against its effect. 

The last clause of the third instruction given for the plain- 
tiff, to-wit : "and if the jury consider it more probable, from 
all the facts and circumstances as shown by the evidence, that 
the contract was that such work was to be paid for by War- 
ner & Edwards, then the jury should so find," was also ob- 
jectionable. 

The jury should not have been left at liberty to speculate 
on probabilities, but should have been satisfied by the greater 
weight of evidence that Warner & Edwards, and not Ed- 
wards & Wood, were to pay for the work in question. 

The judgment is reversed and the cause remanded. 

Judgment reversed. 



Western Union Railroad Company 

V 

David C. Wagner et al. 

1. Sale — transfer of title hy warehouse receipt or bill of lading. The 
transfer of a warehouse receipt or bill of lading, accompanied by a sale 
or pledge of the property specified in the receipt or bill, will have the 
sanae effect as the delirery of the property itself to the transferee. 



198 W. U. R. R. Co V. Wagner ei al. [Sept. T., 



Opinion of the Court. 



2. Sa-}jie— conditional delivery. Where the vendor of a lot of butter 
delivered it at a railway station, and authorized the railway agent to issue 
a bill of lading to the vendee, under a verbal agreement with the vendee 
and the agent that it should not be shipped until the balance of the pur- 
chase price was paid, and the vendee pledged the bill of lading to a third 
party, who advanced him the value of the butter, without any notice of 
the verbal agreement : Seld, that while the verbal agreement may have 
been sufficient as between the vendor and vendee, yet it was not of the 
slightest avail as to the third party; and by consenting to the delivery of 
the bill of lading, the vendor enabled the vendee to transfer a good title to 
any person dealing with him, without notice of the conditions annexed 
to the delivery. 

Appeat. from the Circuit Court of Ogle county ; the Hon. 
W. W. He.\ton, Judge, presiding. 

Messrs. Eustace, Barge & Dixox, and Mr. Thos. J. 
Hewitt, for the appelhint. 

Messrs. Bushneel & Buee, and Mr. E. F. Butcher, for 
the appellees. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

We held in Burton v. Ouryea, 40 111. 320, that while a 
warehouse receipt is not negotiable in the sense in which that 
term is applied to a promissory note, yet the transfer of such 
a receipt, accompanied by a sale or pledge of the jn-operty 
specified in the receipt, would have the same otfect as the 
delivery of the property to the transferee — neither less nor 
more. This was before the act of 1807 in regard to ware- 
houses, in which tlie legislature seems to have made such 
receipts strictly negotiable. The rule laid down in that case is 
applicable to bills of hiding, and is decisive of the })resent 
case. 

When the vendor of the butter delivered it at the railway 
station, and autliorized the railway agent to issue a bill of 
lading to the vendee, he thereby placed tlie vendee in the 
possession of the property so far as third persons, knowing 



1872.] W. TJ. R. R. Co. v. Wagner et cd. 199 

Opinion of the Court. 

nothing of the verbal arrangement^ might become interested. 
The verbal agreement between the vendor, the vendee and 
the railway agent that the butter should not in fact be shipped 
until the residue of the purchase money should be paid, may 
have been quite sufficient as between the parties, but was not 
of the slightest avail as against Hewitt, who, without notice 
of such arrangement, advanced to the vendee ^the value of 
the property on the pledge of the receipt. The mistake of 
the vendor was in consenting that the bill of lading or ware- 
house receipt — for it might be regarded in either light — should 
be issued to the purchaser and retained by him. Indeed, 
after taking the bill of lading or receipt into his own 
possession for the purpose of stamping it, the vendor delivered 
it himself to the purchaser. This was precisely the same thing 
as the delivery of the property would have been, and enabled 
the purchaser to transfer a good title to any person dealing 
with him without notice of the conditions annexed to the 
delivery. This last rule is settled by the cases o^ Jennings v. 
Gage, 13 111. 611, and Brundage v. Camp, 21 ib. 330. In the 
last case the authorities are fully reviewed. 

The instructions of the court were not in harmony with 
these principles settled in the several eases above cited, and 
the judgment must be reversed and the cause remanded. 

Judgment reversed. 



200 Rawsox v. Fox et al. [Sept. T., 

Syllabus. 



Stephen W. Rawson 



Albert R. Fox et al. 

1. Limitations — what is color of title under act of \%i^. Wliere a mort- 
gage given by two owners had been foreclosed in a proceeding in which 
a party holding an undivided half of the equity of redemption was not 
made a party, and the purchaser at the master's sale, after receiving the 
master's deed, made a deed to it which purported to convey the premises 
in fee : Held, that the latter deed was color of title under the limitation 
law of 1839. 

2. It has been held, since the first cases decided under the act, that the 
claimant is not required to trace title through a chain to any source to 
constitute color of title. The case of Irving v. Brownell, 11 111. 412, an- 
nouncing a diflFerent rule, was overruled by the case of Woodward v. 
Blanchnrd, 16 111. 424, and the rule here stated has since been followed. 

8. So it has been held that where there was an ineffectual effort to 
obtain a strict foreclosure of a mortgage, but where the holder of the 
equity of redemption was not made a party, the mortgage and decree 
became color of title. 

4. And it has been held that an assignment of shares of land among 
tenants in common in a proceeding for partition, where one of the co-ten- 
ants was not made a party to the decree, constituted color of title to each 
of the tenants for the share set off to him under the decree, and that such 
omission of parties will not overcome the presumption of good faith. 

5. Same — good faith in party holding color of title. The courts will not 
hold that the party claiming the benefit of the limitation under color of 
title, is chargeable with bad faith, because the registry of deeds or the 

judgment dockets may show a paramount outstanding title, or that the 
title of the claimant is defective, as that would be to render the statute 
pracliciilly inoperative. 

6. The manifest object of the statute was to protect those who purchase 
land and pay their money therefor, under the belief that they are acquir- 
ing title. The fact that they paid for the land, have paid all taxes assessed 
against it for seven years, that they have taken possession, improved the 
same and controlled it as other owners generally act, affords evidence of 
their good faith. 

7. Same — neglect to record deed doe* not raise a presumption of bad faith. 
The failure of a party to record his deed, which is color of title, for a 



1872.] Eawson v. Fox et al. 201 

Syllabus. 

period of five years after its execution, will not be held to raise a presump- 
tion of bad faith to defeat the operation of the statute, as the statute itself 
has imposed no such condition. 

8. Same — payment of taxes. Where the color of title was in the wife, 
payment of taxes in the name of her husband may be shown by parol 
evidence to have been made for her, and under her color. 

9. Same— /o77?zer decision explained. The case of Fell v. Cessford, 21 111. 
522, announces in general terms that the holder of color of title must pay 
the taxes to come within the provision of the statute, but it does not say 
that the party may not act, in this respect, by an agent, the same as in 
other matters. Where the taxes are paid by an agent in his own name, it 
is competent to prove under this statute that the money was in fact paid 
for the owner, and under his color of title. 

10. Same — evidence to defeat limitation. Where the holder of an undi- 
vided half of a tract of land conveyed to his brother, who, with the owner 
of the other interest, mortgaged the same, and the wife of the first party 
afterwai'ds acquired claim and color of title to the same land, by a deed 
from the purchaser, under a defective proceeding to foreclose the mortgage, 
and the wife, and those claiming under her, paid all taxes assessed thereon 
for seven successive years, while the land was vacant and unoccupied, the 
payment for the wife being made by her husband in his name, it was 
insisted that the court below should have admitted proof to show that the 
conveyance of the husband to his brother was set aside by a decree in. 
chancery as being made to defraud creditors, and that therefore the hus- 
band was re-invested with title by the decree, and became a tenant in 
common with the holder of the other undivided half, and consequently 
payment of taxes by him could not be applied exclusively on account of 
his wife's color : Held, that the evidence was immaterial, as the decree 
did not operate to reinvest the husband with the title. 

11. Same — -prior agreement as affecting question of good faith. Where 
two persons owning a tract of land mortgaged the same to A, the mort- 
gagee agreeing by a stipulation in the mortgage to pay the taxes, and one 
of the mortgagors conveyed his equity of redemption to B, whose interest 
the complainant subsequently acquired, and it appears that A afterwards 
foreclosed his mortgage, but did not make the complainant a party ; that 
the premises were sold under decree of foreclosure to C, who received a 
master's deed ; that C then conveyed the premises to A, the mortgagee, who 
made a deed purporting to convey the title to D, who, together with those 
succeeding to his title, paid all the taxes assessed on the land for seven 
successive years, while the same was vacant and unoccupied ; and that 
after the completion of such payment for the said term, the grantee of D 
took actual possession ; and that B then, after the lapse of twelve years 
from the attempted foreclosure, filed his bill to redeem from the mortgage 
as to the undivided half of the premises, and contended that as the mort- 
gagor had a right to rely upon the agreement of the mortgagee to pay the 



202 Rawson v. Fox et al. [Sept. T.^ 

Syllabus. 

taxes, those acquiring claim and color of title under the attempted fore- 
closure must take notice of the agreement to pay taxes, and could not set 
up their payment by them to deteat the right to redeem: Held, that the 
agreement imposed no duty on the purchasers to pay the taxes, and that 
the right to redeem was barred under the statute of 1839. 

12. Deed — delitery. Where the grantor left his deed with the father 
of the grantee, and wrote to the latter that the deed was in his father's 
hands for him : Held, that this was a sufficient delivery to give the deed 
eflect. 

13. Cancellation op deed — as a cloud upon title. "Where on bill 
to redeem from a mortgage upon which a sale under foreclosure had been 
had, but wjiich was defective for want of a necessary party to the proceed- 
ing, the defendant who claimed title under the sale, set up the statute of 
limitations in defense, and also filed a cross bill to have the deed convey- 
ing the equity of redemption under which the complainant based his right 
to file the original bill, set aside and canceled as a cloud upon his title, 
the proof showed that the complainant's right to redeem was barred under 
the act of 1839 by the payment of taxes for seven successive j-ears on the 
land while the same was vacant and unoccupied, but failed to establish 
the particular ground upon which the complainant's title was sought to be 
set aside as a cloud: Held, that as all the parties in interest were before 
the court, and were seeking to have their titles tried and settled, it was 
proper for the court below to declare the complainant's title a cloud upou 
that of the defendant, as he was barred from asserting it, and enjoin its 
jisserlion, but not proper to require the complainant to convey his title to 
the holder of the adverse title. 

14. Fraxtditlent conveyance — effect of decree setting it aside. Where 
a decree was entered setting aside a conveyance of laud as having been 
made to defraud creditors of the grantor, it was held that it would be 
construed as only declaring the deed void, and setting it aside as to the 
creditors of the grantor, and that it still remained in force as between the 
parties; and that if the creditors were satisfied without a sale of the land, 
the decree was virtually wiped out, and thenceforward had uo eflect what- 
ever upon the title rlainu'd under such fraudulent deed. 

Appkai. from the Superior Court of Cook county; the 
Hon. J().si:ph E. Gary, Judge, presiding. 

Messrs. Rich ct Tiio.mas, and Messrs. McCagg, Fuller & 
CuLVEK, for the ai>penants. 

Messrs. McDaid tt Wilson for the appellees. 



1872.] Eawson v. Yoxetal 203 

Opinion of the Court. 

Mr. Justice Wai.kee delivered the opinion of the Court: 

Appellant filed a bill in the Superior Court of Chicago, 
against appellees, to redeem from a mortgage and for partition 
of a tract of land. It is claimed that appellant is the owner 
of an undivided half of the land in controversy, and clji-ms 
to derive title as follows : a patent from the general govern- 
ment to Isaac Cook, and a deed from him to Henry Patwin 
and Wm. M. Bowdoin ; that Patwin conveyed to his brother 
Caleb, who, with Bowdoin, mortgaged the premises for S1700 
to one George Winters ; that Wm, M. Bowdoin conveyed 
his undivided half to Willard S. Bowdoin. who subsequently 
died, and appellant purchased of his sole heir and widow, 
thus becoming interested in the title to one half of the land. 
It is admitted that Fox is the owner of the other half, subject 
to incumbrances and equities held by the other appellees. 

That after the sale to Willard, Winters foreclosed his mort- 
gage, only making William M. Bowdoin and Caleb Patwin 
parties, and a decree Avas rendered against the entire tract, 
which was sold by the master, when one Daniels became the 
purchaser, and the premises not having been redeemed, on 
the 17th day of July, 1861, the master executed a deed to 
Daniels. It appears that Daniels, on the 11th day of October, 
1861, conveyed the premises to Winters, and he, on the 2d 
day of December, 1861, conveyed to Mary E. Patwin, the wife 
of Henry Patwin, and that they conveyed the premises to 
appellee Fox on the 24th of October, 1867. The bill alleges 
that Fox, on the 15th of May, 1870, executed a trust deed to 
Henry O. McDaid on six acres of the land, to secure the pay- 
ment of $10,000 due the Central City Savings Institution of 
New York, and that Horatio G. Spafford claims some right 
or interest in the land in controversy. It is further alleged 
that the premises had remained vacant and unoccupied until 
the 1st of October, 1<? 'l,at which time Fox enclosed the same 
with a fence. 



20-i Rawson v. Fox et al. [Sept. T., 

Opinion of the Court. 

Fox answered and denied that appellant was seized in fee 
of the premises, or that he had any legal or equitable title to 
the premises or any portion thereof. He admits that six acres 
of the tract were incumbered by a trust deed, as charged in 
the bill, and alleges that the incumbrance is bona fide; that 
Spafford is the equitable owner of one half of ten acres of the 
tract after tlie payment of purchase money, interest and taxes. 
He denies that complainant was, or ever had been, a tenant 
in common with him or Spaiford. 

He sets up his possession as charged, and that prior to that 
time the premises were vacant and unoccupied, and alleges 
that while the same were so vacant and unoccupied lie and those 
from whom he derived title paid all taxes legally assessed 
upon the property for more than seven successive years, under 
claim and color of title to the laud made in good faith. He 
sets up and insists on the statute of 1839 as a limitation and 
bar to the relief songht. 

The Savings Tnstittuioii answered, insisting that Fox was 
the owner of the laud ; tluit they held the incumi)rance, and 
had made tlio loan and taken the trust deed witiiout notice of 
any claim on the })art of complainant. They also pleaded and 
relied upon the statute ol' limitations. Spafford answered, 
denying any ownership of coinplainant. and setting up his 
claim, and jileads the staluti' of limitations. McDaid an- 
swei'ed, setting up his interest as trustee, and ri-lies on the stat- 
ute of limitations. 

Fox and Spafford filed a cross hill, in whieii thoy allege that 
the deed from William M. to AVillard S. Bowdoin was never 
delivered, and that comi)lainant only claims title through that 
deed, and pray that it be decreed to be null and void. To 
the cross bill there was an answer, in which appcdlant re-asserts 
his title, and alleges tliat tiu' deed was duly delivered. Rep- 
lications were filed and a trial was had. when the origiiuil bill 
was dismissed for want of e<|uity. and the relief prayed by 
the cro.ss bill was granted, and the det-d to Willard S. Bow- 
doin was iield to be a cloud on the title of defendants. From 



1872.J Rawson v. Fox et aC. 205 

Opinion of the Court. 

this decree complainant appeals to this court, and assigns 
various errors. ' 

Under all the decisions of this court on the question, the 
deed to Mrs. Patwin was color of title. It purported on its 
face to convey the title to her. This fully answers the re- 
quirements of the statute as to color of title. It also appears 
that there was payment of taxes for the requisite statutory 
period on the land whilst it was variant and unoccupied^ 
which was afterwards followed by possession under the color 
of title, before the commencement of this suit. This estab- 
lishes a complete bar under the statute, unless there was bad 
faith in acquiring and holding the color of title, or there was 
some irregularity in paying the taxes. 

The mere fact that Patwin had previously held an interest 
in the land, but which he had conveyed, would not have pre- 
vented him from subsequently acquiring color of title in good 
faith. He was not a party to the suit for a foreclosure, and 
having previously conveyed his interest in the land, was no 
farther bound to take notice of the decree of foreclosure than 
any other person. And it has been repeatedly held that per- 
sons acquiring color of title are not required to examine the 
records, or be charged with notice of advei'se titles or defects 
in their own. This, then, was no evidence to charge bad 
faith in Mrs. Patwin through her agent. 

But it is urged that had the court below admitted the 
abstract of title offered in evidence, it would have ap- 
peared that the deed from Henry Patwin to his brother 
Caleb, and his deed to Thomas Patwin for Henry's undivided 
half of the premises, were decreed fraudulent, and set aside 
on a bill filed by creditors; that the decree was rendered 
in September, 1859, and that had this evidence been admit- 
ted it would have appeared that Henry Patwin became 
reinvested with the title to an undivided half of the premises 
by the decree, and, as a tenant in common, could not pay the 
taxes under and on account of his wife's color of title ; that 
und*^r such circumstances the taxes paid by him would be 



206 Rawsox f. Fox et al. [Sept. T., 

Opinion of the Court. 

treated as a payment for himself and his co-tenant; and any 
attempt on his part to pay under the title held by his wife 
Avould be bad faith to his co-tenant, with which his wife must 
be charged. 

In the view we take of this case, it is immaterial whether 
this evidence be considered as in or out of the record. Our 
statute of frauds only renders conveyances made to hinder 
and delay creditors and purchasers void as to persons thus 
defrauded. It leaves the conveyance perfectly valid and 
binding as to the parties to it. If the court did decree that 
these deeds were void, and ordered them to be set aside as to 
the creditors, and that they still remained in full force as 
between the jKirties to them, it does not appear that a sale 
was made under the decree, and the probabilities are that the 
money was paid to the creditors, and if the decree was thus 
satisfied, it thereby became virtually wiped out, and thence- 
forward had no effect. So, even on the evidence offered, it 
fails to appear that Henry Patwin had any, even the re- 
motest, interest in the land whilst he was acting as the agent 
of his wife in the payment of taxes. 

Tlie question of good faith has been much discussed in this 
court, and we deem it unnecessary to review the cases or to 
enter upon an elaborate consideration of the question. All 
the cases prot'ced on the ])re.'^unijtti()n that this statute was 
intended to have some practical ojjeration. And to hold tiiat 
a person is chargeable witii bad faith because the register of 
deeds or tiie judgment docket may show u paramount out- 
standing title, or that the title of claimajit is defective. Mould 
operate as an abrogation of the statute. If such were held to 
be tlie meaning of the statute, no one could act in good 
faitli but a |)erson iiaving a perfect title, and such a title needs 
no protection from this or any other statute. The act was 
manifestly intended to protect those who purchase land and 
pay their money therefor, under the belief that they are ac- 
quiring titk;. \m\ wliat better evidence of their good faith 
than tlie fact that they paid for the land, have paid all taxes 



1872.] Rawson v. Fox et cd. 207 

Opinion of the Court. 

assessed against it for seven years ; that they have taken pos- 
session, improved the same, and have controlled the property 
precisely as owners generally act with their lands. 

It has been held, since the first cases decided under the act, 
that the claimant is not required to trace title through a claim 
to any source to constitute color. See Woodward v. Blancliard, 
16 111. 424. It is true, that Irving v. Broionell, 11 111. 412, 
gave this statute a diiFerent construction, but that case was 
overruled by Woodioard v. Blanchard, Supra, and the rule 
here announced was there adopted, and has been uniformly 
acted upon since that time. 

It has been held that where there was an ineifectual effort 
to obtain a strict foreclosure, but where the holder of the 
equity of redemption was not made a party, the mortgage 
and decree became color of title. CMclcering v. Failes, 26 
111. 507. And a partition and assignment of shares of the 
land among tenants in common, even where one of the co- 
tenants was not a party to the decree, constituted color of 
title to each of the tenants for the share set off to him under 
the decree. Hassett v. Ridgley, 49 111. 200; Hincldeyw. Green, 
52 111. 223; and that such omissions of parties is not evidence 
that will overcome the presumption of good faith. 

It is urged that the failure of Mrs. Patwin to record her 
deed from Winters for five years after its execution, was such 
evidence of bad faith as should prevent her from interposing 
the bar of the statute ; and that she should not be permitted 
to avail herself of payment of taxes during that period. The 
statute has not imposed it as a condition that the color of 
title shall be recorded ; and for us to require it would be 
adding to the requirements of the law. Her conduct in this 
regard is not so far out of the course adopted by land owners 
generally as to raise the presumption that there was an evil 
or fraudulent purpose in not recording the deed. And it was 
color whether or not it was recorded, and the evidence shows 
that the taxes were paid under it, and we think that these 
acts came within the letter and spirit of the statute. 



208 Rawsox v. Fox et al. [Sept. T., 

Opinion of the Court 

Willard S. Bowdoin was bound to see that his taxes were 
paid. Tlie foreclosure of tlie mortgage occurred in 1859, and 
the sale under it was in April, 1860, and this suit Avas not 
brought until the latter part of February, 1872, nearly twelve 
years after the sale. Unless exceedingly indifferent to their 
rights, he, or those claiming under him, must have known of 
the decree and sale, and certainly knew that taxes were being 
levied on the land, and that they were not paying them. It 
was within their power with slight effort to have learned that 
Winters had foreclosed the mortgage, and from that time for- 
ward Willard had no right to suppose Winter was treating 
the mortgage as still subsisting. The foreclosure, however 
irregular, was hostile in its character to the rights of the 
mortgagors and all persons claiming under them. 

It is likewise urged that Mrs. Patwin can not avail herself 
of the payment of taxes on this land which was made in the 
name of her husband, although the evidence shows that they 
"U'ere paid for her and under her color of title; and the case 
of Fell V. Cessfonl, 26 111. 522, is referred to in support of the 
position. The general proposition is thus announced that the 
holder of color must pay the taxes, to be within the provisions 
of the statute, but it is not said that a party may not act by 
an agent in that as in other matters. In the case of Cojield v. 
Furry, 19 111. 183, it was held to be immaterial whether the 
taxes were paid by the trustee or the cestui que trust, the land- 
lord or the tenant, so they were paid in subserviency to the 
claim and color of title; and the same rule was announced in 
Lyon v. Kain, 47 111. 200, and other cases might be referred to 
announcing the same rule. 

Tlie case of Hinchman v. WJietstone, 23 111. 185, which has 
been followed by other decisions of this court, holds that 
the payment of taxes under claim and color of title may be 
proved by verbal testimony. The grounds for these decisions 
were stated, and wc have no inclination to repeat them. 
According to tliese decisions it was entirely competent for 
Mrti. I'atwin to prove by parol tliat the taxes were paid under 



1872.] Kawson v. Fox et al 209 

Opinion of the Court. 

and for the protection of her color of title ; and it has been 
held that where taxes have been paid by and in the name of 
an agent, it was competent to prove that the money was 
in fact paid for the owner of, and under his color of title. 
Rand v, Scojield, 43 111. 167. It was, then, competent to prove 
that although the receipts were taken in the name of Henry 
Patwin, the payment was in fact made for his wife as the 
holder of the claim and color of title. 

When Fox purchased he had the right to run the risk of 
proving that the taxes were paid for Mrs. Patwin, although 
in the name of her husband. He has shown they were so 
paid, and when coupled with those paid by himself after he 
purchased, we see that all taxes legally assessed for seven 
successive years were paid ; and that claim of color of title 
in good faith, payment of taxes for the requisite statutory 
period on vacant and unoccupied land concurred for full seven 
years, and that this was followed by actual possession of the 
property after such payment of taxes and before the com- 
mencement of this suit. 

It was also urged that Winters agreed by a stipulation in 
the mortgage to pay all taxes on the land, and that Willard 
S. Bowdoin had a right to rely upon that agreement. The 
contract was between Winter and Willard's grantor, and even 
if he succeeded to the benefit of the agreement by the convey- 
ance to him, still Ave are at a loss to perceive how that could 
impose any duty either legal or moral on Henry Patwin to 
pay the taxes for Willard S. Bowdoin. Henry was not a party 
to the mortgage and had previous to that time parted with 
his title to the land. And we have seen that Mrs. Pat- 
win was not required to trace the title back to its source to 
determine whether it was defective, or that previous owners 
had incumbered it with covenants, liens or other burthens. 

Winters, her grantor, held a deed that was color of title, and 
if she was even required to examine that, she could not from 
it have learned that Winters was under any obligation to pay 
14 — 65th III. 



210 Kawson v. Fox et al. [Sept. T., 

Dissenting opinion of Mr. Justice Sheldon. 

the taxes. To liave learned that, she would have been com- 
pelled to go through the master's deed to Daniels, the decree 
and back to the mortgage. But we have seen she was not 
required to make this search. 

It is urged that the court below erred in granting the relief 
sought under the cross-bill. The proof shows that the deed 
from William M. to Willard S. Bowdoin, was delivered so as 
to become operative as a conveyance. The grantor wrote to 
the grantee that the deed was in their father's hands for him. 
This has always been held to be a sulficient delivery. "When 
thus placed in the father's hands, subject to the control of AVil- 
lard, without any conditions or restrictions, it passed from 
the control of the grantor and was under that of the grantee. ^ 
The rule is familiar that where a grantor places the deed in 
the hands of a stranger for the grantee, and no restrictions 
are imposed on its delivery, such an act is sufficient to give 
the deed full effect. 

Notwithstanding the deed was properly delivered and passed 
the title of William M. to Willard S. Bowdoin, subject to 
the mortgage, still the statute has barred those claiming 
through Willard I'rom asserting that title; and as appellant 
filed the bill and brought all the other parties into court, 
claiming the undivided half of the land against the claims of 
the other parties, and to have their titles tried and their 
rights settled, tiie court, by the original and cross bills, 
acquired jurisdiction over the whole matter, and it being 
shown thai appellant's title was barred, it was proper that the 
court below should declare his title a cloud on that of aj)pel- 
lees, and order it to be canccleil, and that appellant should 
be enjoined Ironi its assertion. The decree is so far mod- 
ified as not to require that title to be conveyed to appellees; 
and the decree in other respects, is allirmed. 

Decree ajiniied. 

Mr. .liJSTicK SnKi-i)()N, dissenting: I do not aarree with 
80 much of tite opinion of the majority of the court as seems 



1872.] Rawson t'. Fox e^ a/. 211 

Dissenting opinion of Mr. Justice Sheldon. 

to countenance the idea that a mortgagee or tenant in com- 
mon can, under the statute of limitations, gain the title of 
his mortgagor or co-tenant by obtaining the deed of the land 
under a void proceeding, without notice, for foreclosure or in 
partition, and the payment of taxes for seven years. 

The deed might be color of title, as this court has hereto- 
fore decided. But in addition to color of title there must be 
good faith ; and I understand that it is not actual bad faith 
that is required in order to defeat the operation of the statute, 
but that bad faith in law will have that effect; and, as I 
regard it, there is bad faith in law in acquiring title in such 
manner, unless notice of the hostile proceeding had been 
brought home to the mortgagor or co-tenant. Such a void 
proceeding as above supposed would not sever the relation 
of mortgagor and mortgagee, or that of tenants in common ; 
and while such relation subsists there must not only be the 
assertion of an adverse right, but it must be brought home to 
the other party, before any foundation can be laid for the 
■operation of the statute. And knowledge of the hostile atti- 
tude is not to be presumed, but it must be shown by proof, so 
as to preclude all doubt of the want of knowledge on the part 
of the owner. This appears to be the plain rule of law in 
<5ases where such a privity exists between parties. Roberts v. 
Morgan, 30 Verm. Z\%;Holley v. Hawley, 39 id. 525 ; Zeller's 
Lessee v. Eckert et al 4 How. 289 ; 3 Washb. Eeal Prop. 128. 

And it seems to have been recognized by this court in 
H'mGldey v. Green, 52 111. p. 232, in the opinion on refusal of 
a rehearing, where the necessity of notice in such case, to the 
co-tenant, of the adverse claim, and payment of taxes, is recog- 
nized. 

Neither do I accede to the view that a purchaser of land 
is not bound to take notice of prior conveyances of record 
which are links in his chain of title. 

Of such conveyances, I think he is presumed to have no- 
tice. It was only through the Winters mortgage that any 
interest in the land in Winters could be deduced. 



212 Adlard i". Adlard. [Sept. T., 

Syllabus. 

Mart Ann Adlard 

V. 

Thomas Adlard. 



1. Chancery — eff'cct of sicorn answer, where oath is waived in bill. Where 
the bill of complaint waives an answer under oath, the answer of the de- 
fendant, although under oath, can be regarded only as a pleading in the 
case, to which the oath adds no force. 

2. Husband and wife — wJietJier property taken in tJie name of the wife 
wa^ intended as a procision for her or not. . Where a husband placed all his 
earnings in the hands of his wife for investment, and she purchased three 
parcels of real estate, taking the deeds therefor to herself, which recited 
that the conveyances were made for her sole and separate use, as her sep- 
arate estate, independent of her husband; and it appeared that the husband 
had knowledge of such clause in each of the deeds, having examined the 
papers; that the relations existing between them at the time were of the 
most cordial nature, and that such provision for the wife at tlie time it was 
made was not extravagant or unreasonable: Held, in the absence of fraud 
being shown, that it would be inferred from the facts that the husband iu 
tended a settlement of such property upon the wife as a separate and iu 
dependent estate beyond his control. 

3. '6. KiATS.— presumption as to settlement or provision for wife must be a red 
tonable one. While it is no doubt a natural presumption that a husband 
placing his money in the hands of his wife, to be invested in her name, 
intends it as a specific provision for her exclusive benefit, yet such a pre 
sumption would be unreasonable where a husband, a day laborer, deposits 
with his wife his daily, weekly or monthlj' earnings as he receives them, 
with a view, as the}' accumulate, to a jiermauent investment, leaving such 
investment to her own judgment, retaining nothing iu his own hands, and 
making no provision for his own future. 

4. Where it appeared that the liusbaud, who followed the business of 
ornamental painter and graincr for a livelihood, from which he realized 
large profits from his earnings, had made a reasonable provision for his 
wife of valuable property, and he, being young and inexperienced, placed 
all of his money in the liands of iiis wife, not as a gift, but for safe keep- 
ing, she being a woman of business capacity, of mature age and of expe- 
rienced knowledge of the world, and she invested this, with moneys of her 
own, in the purcliase of other real estate, but took the title in her own name, 
and they were afterwards improved by the means of both, with no expec 
talion at the time that either would claim an exclusive right to it: Held, 
that, in view of the ample settlement already made upon the wife, it would 



1872.] Adlaed v. Adlaed. 213 

Opinion of the Court. 

not be presumed that the husband designed to appropriate his all to her 
benefit, leaving nothing for himself, but it would be regarded that such 
last acquired property was purchased for the joint and equal benefit of 
both parties. 

Appeal from the Circuit Court of Cook county; the Hon. 
William W. Faewell, Judge, presiding. 

Messrs. Fullee & Smith, for the appellant. 

Messrs. Eldeidge & Touetellotte, for the appellee. 

Mr. Justice Beeese delivered the opinion of the Court: 

This was a bill in chancery, exhibited in the Cook circuit 
court by Thomas Adlard against Mary Ann Adlard, and is 
before us on a rehearing. 

It appears by the bill of complaint and the proofs in the 
cause, that these parties were married in 1S62, complainant 
then being about twenty-two years of age, just out of his ap- 
prenticeship, and the defendant a widow, of the more mature 
age of thirty-five or forty. From the time of their marriage 
up to March, 1868, they lived together as man and wife. 

Complainant alleges, at the time of his marriage he was the 
owner of a frame building situate on leased land in the city 
of Chicago, worth, at that time, about eight hundred dollars; 
that defendant was worth only her wearing apparel and a 
small quantity of furniture. Complainant was an ornamental 
painter and grainer, and since his marriage had devoted all 
his time to his art, realizing large profits therefrom, his aver- 
age daily receipts throughout the year being from fifteen to 
twenty dollars. These earnings, complainant alleges, he placed 
in the hands of defendant, she being acquainted with business, 
and he having none outside of his art, to keep the same, and 
to invest them, from time to time, in such property as com- 
plainant might select and purchase, being greatly controlled 
therein by the defendant. 



214 Adlard f. Adlard. [Sept. T., 

Opinion of the Court. 

There appears to have been six different pieces of real 
estate — city lots — claimed to have been purchased with the 
monev so placed in tiie hands of his wife, the deeds for which 
it is alleged were taken by his wife in her own name, without 
complainant's knowledge or consent; that his wife informed 
him, from time to time, when the purchases Avere made, 
that the deeds were made to them jointly, and he, supposing 
such was the proper mode of conveying real estate to a mar- 
ried man, was satisfied, and paid no further attention fo the 
matter, believing that the title to the lots was in himself alone. 
He alleges, from the time the lots were purchased he com- 
menced to improve them, erecting buildings on tiiose most 
valuable ; improved and repaired the buildings and fences on 
other lots, and was, at the time of filing the bill, on the pro])- 
erty known as No. 15 Fourth Avenue, a large brick houso ; 
three two-story frame dwelling houses on other lots on Hub- 
bard street, an(i three cottages on lots on Paulina street, the 
value of all of which is alleged to be twenty -five thousand 
dollars, with a rental value of four thousand two hundred 
dollars per annum. 

The scope and object ol" the bill is to compel defendant to 
convey this pro[)erty to complainant, he alleging he has tiled 
a bill for divorce, and that defendant is making prej)arati(ins 
to sell the property and phice it bevond complainant's reach, 
she herself to take her de{)arliire Ibr a foreign country with her 
paramour. 

It is charged defendant has collected all the rents, no part 
of which iuis she paid over to complainant. 

Tlie prayer of tiie bill is, that the defendant be compelled 
to unite with com{)lainant, or alone, in a deed of trust to a 
third party, for complainant's benelit. and he dii-reeil to con- 
vey tlie lots by good and sullicient deeds, so that the title to 
the same may vest in complainant, and to rej)av to complain- 
ant the money collected by her ibr rents, and that she be 
enjoined from .selling, leasing, or in anv wav tiisposing oi' the 
property, or intertering with the same, except under the order 



1872.] Adlaed v. Adlaed. 215 

Opinion of the Court. 

of the court; and that, in the meantime, a receiver be ap- 
pointed to take possession and charge of the property and col- 
lect the rents. 

An injunction was allowed by the circuit judge, and affida- 
vits received by the circuit court in support of the averments 
in the bill. 

The defendant appeared and entered a motion to dissolve 
the injunction, which the court disallowed and required the 
defendant to plead, at the same time appointing a receiver, as 
prayed for. 

The defendant put in her answer under oath, although the 
oath was waived by complainant in his bill. 

The answer admits the marriage and cohabitation, but de- 
nies most of the other material facts charged. 

Exceptions were taken to the answer, which were disallowed, 
and a replication put in and the cause set for hearing. Much 
testimony was taken, and a decree passed in favor of the com- 
plainant, allowing to him one-half of the property. To re- 
verse this decree, the defendant appeals, and assigns various 
errors. 

As the bill of complaint waives an answer under oath, the 
answer of defejadant, although under oath, can be regarded 
only as a pleading in the cause, to which the oath adds no 
force. Bloore et ux. v. Hunter, 1 Gilm. 317; Willenhorg, v. 
3Iurphy,S6 111. 344; Walhvork v. Derby, 40 ib. 527; Hop- 
kins V. Granger, 52 ib. 504. 

The evidence on some points is conflicting, but from the 
whole tenor of it, we are satisfied the proceeds of complain- 
ant's labor amounted to many thousand dollars, a great part 
of which he put in possession of defendant, not as a gift, but 
for safe keeping, she being a woman of business capacity, of 
mature age, and of experimental knowledge of the world, he 
himself being young and inexperienced, ignorant of business, 
and confiding fully in the fidelity and judgment of his wife. 
He testifies he was under the belief, all the time, that the 
money so entrusted to his wife was invested for his benefit, 



216 Adlard v. Adi.ard, [Sept. T., 

Opinion of the Court. 

and the titles taken to him, or to him and his wife, he sup- 
posing the latter was the proper mode by which to convey 
land to a married man, and he remained in that belief until 
about the time of filing this bill 

The questions made upon the record are, do the proofs show 
that complainant's money paid for the pieces of property and 
for what parcels? Was the title to them acquired in such a 
manner by appellant as to raise a trust in which complainant 
is the only beneficiary? Can a married woman be a trustee 
for her husband, and can she be called into chancery by him 
that she may be compelled to perform the trust? 

We do not deem it necessary to determine either of these 
questions, in the view we have taken of the case. 

It appears there M-ere six different parcels of real estate pur- 
chased, and deeds taken in the name of appellant. Thev are 
described in exhibits A, B, C, D, E and F. That described 
in exhibit A was purchased of Wolf Schaeffer on the 14th of 
August, 1863, and that in exhibit B on the 13th of October 
of the same year, through B. W. Thomas, acting for Charles 
Tobsy, the owner. Those deeds contain these words: "This 
conveyance is made to said Mary Ann Adlard, wife of said 
Tiiomas Adlard, and to her heirs and assigns forever, for her 
sole and separate use, benefit and behoof, as a separate estate, 
independent of lier husband." Tiie word " forever" is omit- 
ted in exhibit B. 

It is claimed by appellee that ho had, at this time, ability 
from his earnings, by a lalxirious jirosecution of his art, to 
make these purciiases, and to pay tor them, and liis money 
was so applied by appellant. 

Taking this for true, wiiat is the reasonable presumption, 
this clause being inserted in each of these deeds witii the 
knowledge of complainant, who examined the papers? 

At the respective dates of the deeds, the relations between 
these parties were of the most cordial nature, and the infer- 
ence must be, as expressed in the deeds, that he intended these 
pieces of property should constitute in appellant a separate 



1872.] Adlaed v. Adlard. 217 

Opinion of the Court. 

estate, M'liolly independent of him. In fact, there is no room 
for inference, and no frand is proved. That appellant holds 
these pieces of property in trust for complainant, is wholly 
inconsistent with the terms of the deed. Such a provision for 
the wife, at the time it was made, was not extravagant or un- 
reasonable. Prudential considerations might well conspire 
with marital regard to provide something certain for one com- 
plainant had strong inducements to provide for. 

There is nothing in the facts, pertaining to these purchases, 
requiring us to imply a trust, but tend strongly to show a set- 
tlement by complainant of this property upon his wife as an 
independent estate, beyond the control of complainant, and 
such should have been the decree of the circuit court. 

As regards the property described in exhibits C, D, E, and 
F, the evidence is not entirely satisfactory whose money paid 
for it. Complainant claims he paid the whole of it, whilst 
appellant insists she paid for three several parcels, and also 
for the improvements thereon. 

It is difficult to believe, in the face of the evidence on be- 
half of complainant, on a consideration of the motives which 
usually prompt conduct, that complainant intended his earn- 
ings, which were large, and which he so often deposited with 
his wife, should be applied by her in making a provision for 
herself exclusively. When we consider that, in 1863, he had 
settled upon his wife a very valuable estate, and thereby made 
ample provision for. her, it is difficult, if not impossible, 
to believe that he designed his all should be appropriated 
for her benefit exclusively. Men are not so generous, and we 
are unable to put any such construction upon these transac- 
tions. 

We fail to find any evidence to sustain the theory of appel- 
lant, that these parcels of property were intended as a sepa- 
rate provision for her, leaving himself destitute. 

It can not be doubted that complainant had great confidence 
in the business qualifications and good judgment of his wife, 
and that she would make a proper use of the means with 



L 



218 Adlard v. Adlakd. [Sept. T.^ 

Opinion of the Court. 

which he had entrusted her; that she would appropriate them 
in a judicious manner, in which, as the results show, he was 
not mistaken. 

It is, no doubt, as argued by appellant's counsel, a natural 
presumption that a husband, placing his money in the hands 
of his wife, to be invested in her name, intends it as a specific 
provision for her exclusive benefit, yet such a presumption 
would be unreasonable when a husband, a day laborer, depos- 
its with his wife his daily, weekly or monthly earnings as he 
receives them, with a view, as they accumulate, to a perma- 
nent investment, leaving such investment to her own judg- 
ment, retaining nothing in his own hands, and making no pro- 
vision for his own future. In this particular case the pre- 
sumption would be very unreasonable, keeping in view the 
fact of the provision before made for her. 

The proof established the fact that these parcels of property 
were paid for and improved by the appropriation of the money 
of both parties, with no expectation at the time that either 
party would claim an exclusive right to it. 

We are disposed to hold, in regard to these parcels, as the 
circuit court held, that they were purchased for the joint and 
equal benefit of both parties; and as to these parcels the de- 
cree of the circuit court must be affirmed ; but as respects the 
premises described in exhibits A and B, they must be held and 
deemed, for the reasons we have given, to be tiie separate 
estate of appellant, and in respect to them the decree of the 
circuit court is reversed. 

The cause will be remanded to the circuit court, with direc- 
tions to enter a decree in conformity with this opinion. 

Decree reversed in part. 



1872.] Smith et al v. Sheldon. 219' 

Syllabus. 



Stephen P. Smith et al. 

V. 

Geokge Sheldon. 

1. Specific performance — -performance, or offer to perform, in reason- 
able time — laches. It is a ■well settled doctrine that ■when a party seeks the 
specific performance of a contract, where time is not made of the essence 
of the contract, he must perform, or tender performance, ■within a reason- 
able time, on the familiar principle that equitj^ ■will only favor the dili- 
gent, and ■when the party himself has been guilty of laches, he can have 
no assistance in a court of equitj-. 

2. Same — rule in respect to time of performance, when the transaction is 
in the nature of a mortgage or security for the payment of money. Where 
the complainant had purchased land under the belief that he ■was acquir- 
ing the title, had taken possession and made valuable improvements, and A, 
on learning that the title was in the United States, sought to pre-empt the 
land as against the right of complainant, and threatened to appeal to the 
department at Washington, in the event the land oflicers decided adversely 
to his claim, and thus compelled the complainant to buy his peace, by 
agreeing to advance the money necessarj' to acquire the government title, 
and have the same taken to one H, to be held by the latter until com- 
plainant should pay A $1600, when H was to convey to complainant: 
Held, that the transaction partook more of the nature of a mortgage than 
of a bargain and sale ; that, under the circumstances, the complainant was 
not bound to make haste to perform his contract, and that the other parties 
ought to be well satisfied if he was required to perform at all, before they 
be required to surrender the title thus held by them to premises whicb 
cost them nothing. 

8. Tender — when not necessary before suit. Where a party in possession 
of land, and having a clear right to pre-empt the same, for the purpose of 
buying off one who was contesting the right with him, agreed to pay the 
latter $1600, and, to secure its payment, had the land entered in the name 
of a third party as trustee, advancing the money necessary to make the 
entry, the latter to convey to him when the $1600 was paid : Held, on bill 
to compel the trustee to convey the legal title, that a tender before suit 
was not necessary, and that it was sufficient if the money was brought 
into court. 

4. Parties m chancery. Where the legal title to land was vested in 
a trustee merely to secure the payment of a certain sum of money to a third 
person, who took no interest in the land itself: Held, on bill by the equi- 
table owner to redeem and compel a conveyance of the legal title to him, 
that the person -whose debt was thus secured was not a necessary party. 



220 Smith et al. v. Sheldon. [Sept. T,, 

Opinion of the Court. 

5. Bill to redeem akd fok conveyance — recovery in ejectment no hat 
Where the real owner of land procured the legal title to be made to a trus- 
tee in trust to secure the payment of money, filed his bill in equity to 
redeem and to compel the conveyance of the legal title to him by the trus- 
tee, it was held, that a prior recovery against him, in ejectment, by the 
trustee, did not cut ofi' his equities or bar the relief sought, as his equi- 
ties were not available as a defense to the action of ejectment. 

Writ of Error to the Circuit Court of Warren county; the 
Hon. Arthur A. Smith, Judge, presiding. 

Mr. A. McCoy, for the plaintiffs in error. 

Mr. T. G. Frost and Mr. J. M. Kirkpatrick, for the de- 
fendant in error. 

Mr. Justice Scott delivered the opinion of the Court: 

This cause' was before this court at a former term, and is 
reported in 44 111. 68. A detailed statement of the facts will 
be found in the opinion then delivered. 

In the former suit, the bill was to enforce an alleged trust, 
and for the payment of money alleged to have been fraudu- 
lently obtained. 

The court denied the specific relief prayed for, but said, in 
regard to the contract between the parties, that defendant in 
error, "having jiurchasod and paid for the tax title, and 
having made valuable improvements, under the belief that ln' 
was the owner, and having advanced the funds to make \\\r 
entry, his e(|nities are clear, and entitle him to relief. ujKin 
payment of the balance of money sjiecified in the agreement :" 
and, in accordance with the suggestion of the court as to the 
relief to which appellants would be entitled, this bill was 
subsequently filed for the speciHc perfi)rmance of the contract. 
The circuit court decreed relief", and appellants now seek to 
reverse the decree, mainly on the ground that appellee was 
guilty of unreasimabK' delay in tendering performance of the 
contract and in exhibitintj his bill for relief 



1872 ] fcMiTii d al. V. Sheldon. 221 

Opinion of the Court. 

Our attention has been directed to that class of cases which 
hold the well settled doctrine that where a party seeks the 
specific performance of a contract, where time is not made of 
the essence of the contract, he must perform, or tender per- 
formance, within a reasonable time, on the familiar principle 
that equity will only favor the diligent; and where the party 
himself has been guilty of laches, he can have no assistance 
in a court of equity. 

Under all the circumstances in evidence, we do not think' 
that this is a case where appellee M'as bound to make much 
haste to perform his contract; indeed appellants ought to be 
Avell satisfied if he is required at all to perform it, before 
they ean be compelled to surrender tlie title to the land in 
controversy, which never cost them anything. It was bought 
and paid for from the government with money advanced by 
appellee, and neither appellants nor the alleged cestui que trust, 
McCartney, ever had the shadow of an equitable title to it. 
Appellant Harding disclaims any equitable interest in the 
land itself, and says that the legal title was taken in his name 
for the convenience of his client, McCartney, and was so taken 
by the consent of the parties in interest. This is, doubtless, 
true. But w^hat interest had McCartney in the land ? None 
whatever. When it was discovered that the title was still in 
the government, he undertook to pre-empt it, when he knew 
that appellee was in the open and notorious possession of the 
land, and had made valuable improvements, under the belief 
that he was the true owner. Good neighborship would have 
required him to place no obstacles in the way to prevent 
appellee from purchasing it when offered for sale by the gov- 
ernment. Having filed a pre-emption claim in the land office 
at Springfield, which had no foundation whatever to rest upon, 
and by pressing it upon the attention of the land officers, and 
intimating in case the decision was adverse, he would appeal 
to the department at Washington, he compelled appellee '*to 
buy his peace" at an exorbitant price. 



222 Smith et al v. Sheldon. [Sept.T., 

Opinion of the Court. 

The evidence discloses this state of facts : that both the 
appellee and ^McCartney claimed the right to enter the land; 
the former, because he had once bought and paid for it an 
adequate price, under the belief that he had purchased a good 
title, and had made valuable and lasting improvements there- 
on; and the latter, because of his pre-emption claim, which 
he must have known he could not maintain; and the appel- 
lee, to compromise the difficulty, and in consideration that 
McCartney would withdraw his pre-emption claim, agreed to 
pay the sum of $1600, and that the title should be taken in 
the name of Harding, and, upon payment of the sum named 
in the contract, he was to convey the land to appellee. 

Technically, the relation of vendor and vendee existed be- 
tween the parties; but in equity there is no such relation. 
Neither Harding nor McCartney had any title to sell to the 
appellee. The title was simply taken in the name of Harding 
as security for the payment of the amount which appellee had 
agreed to pay, to compromise the matter, and when that was 
paid, it was his duty to convey the land to him. 

The transaction j)artakes more of the nature of a mortgage 
than of a bargain and sale, and creates more nearly the rela- 
tion of mortgagor and mortgagee tiian of vendor and vendee. 

Whatever may be the exact definition of the relation be- 
tween the parties, nothing appears in this record that would 
bar appellee from obtaining the relief sought. It was said 
by tliis court, in its former opinion, that "we are at a loss to 
see how a case presenting stronger equities could well occur," 
if appellee should pay the balance of the money under the 
contract, and we are still of the same opinion. 

No unreasonable time elapsed, after that opinion was Hied, 
before appellee commenced this suit. The amount due under 
the contract has been paid into court for the benefit of the 
])arty entitled to it. Jt is not indispensable to the relief 
nought tluit the money siiould have been tendered before the 
bill was liled. It i.s .sullieicnt if the money is brought into 
court. 



I 



1872.] E., E. I. & St. L. E. E. Co. r. Shumci;. 223 

Sj'llabus. 

We do not think the equities of the appellee are barred 
or cut off by reason of the judgment in ejectment, in 1868, 
in the United States Court. He had no complete remedy in 
that action at law, and can not be charged with laches in fail- 
ing to set up the right of relief now sought, as a defense to 
that action. His equitable title could not prevail against the 
legal title. 

In the view that we have taken of the meaning of the con- 
tract between the parties, McCartney was not a necessary 
pai'ty to the bill. He had no interest in the land itself, and 
never had. His interest only attached to the money that the 
appellee agreed to pay to settle the controversy. It is con- 
ceded that the legal title was placed in Harding, to be by him 
conveyed when the money should be paid. No relief, there- 
fore, was necessary as to McCartney, and he need not have 
been made a party. 

The decree was strictly in accordance with the views of the 
court in its former opinion, and must be affirmed. 

Decree affirmed. 



RocKFORD, KocK Island &, St. Louis Railroad Co. 

V. 

John Siiunick. 

1. Estoppel rN pais. On an application to condemn the lands of a 
party for the uses of a railroad, the land owner claimed compensation and 
damages on account of land taken and damaged ; to defeat this claim the 
railroad company offered in evidence an agreement purporting to be ex- 
•jcuted by fifty-seven persons, including the present claimant, securing to 
the company the right of way through the township in which the land was 
situate free of charge and expense. This agreement was not made directly 



224 R., R. I. & St. L. R. R. Co. v. Shuxick. [Sept. T-, 

S^ilabus. 

to the company, but for its use and benefit, and contained a clause that it 
should not be delivered to the companj- until one hundred subscribers were 
secured thereto. This, it was insisted, estopped the land owner from 
claiming compensation and damages: Held, that in the absence of proof 
that the companj' accepted the terms proffered in the agreement, or was 
in any manner influenced to alter its condition or govern its action therebj', 
such agreement could not operate as an estoppel in pais. 

2. Same — proof of condition upon which assurance loas given. And where 
such agreement contained a clause that the same should not be put into 
the possession of the company until one hundred subscribers were pro- 
cured thereto, the company offered in evidence another agreement, said 
to be a copy of the first, and there were over one hundred names sub- 
scribed to the two, but there was no evidence of the genuineness of any 
one signature: Held, that the securing one hundred subscribers was a con- 
dition precedent to the company having any beneficial interest under the 
contract, and that it was not sufficient that so many names appeared, but 
it was necessarj' to have shown that the signatures were genuine, in order 
to admit the agreement in evidence. 

3. CoNTKACT — avoided because induced hy fraudulent misrepresentations. 
Where a railroad was located over a person's farm and through his orchard 
and a part of his dwelling house, and the owner was an unlettered man, 
being unable to read or write, and a person acting in behalf of the com- 
pany came to him while at work in the field, and induced him to sign a 
paper for a subscription including an agreement to secure to the company 
the right of way for its road through such township free of charge, but 
did not read or state that part of the agreement relating to the right of 
way to the owner, but assured him he could obtain compensation, and 
such person signed the owner's name by his direction: Held, that the 
agreement as to the right of way was void ab initio as to the land owner 
on account of such misrepresentation, and that as he was unable to read, 
no negligence was attributable to him. 

4. Agency — wJten principal bound by agent's fraud — adoption of his acts 
Where a party not shown to have been authorized to act for a railroad 
company procured the execution of a contract by one who could not read 
the same, by fraud and misrepresentation, and the company afterwards 
sought to enforce the contract: Held, that the company could not seek to 
reap the fruits of such contract without adopting the means by which it 
■was obtained. 

5. Statdte of FUAiiDS — as appliciible to act of party through another. 
Where a person signs the name of another to a contract at the request of 
and in the presence of the latter, the doctrine of agency in its legal sense does 
not apply, and the authority of the person thus employed to write tlie 
name, need nt)t be in writing, as tlie statute of frauds requiring the agent's 
authority to be in writing has no api)lication to such a case. 



1872.] i;., n. I. & St. L. R. R. Co. v. Shunick. 225 

Opinion of the Court. 

6. Same — wJiat loithin the statute. It seems that an agreement to give 
the right of way over land, or an agreement "which will estop the owner 
from claiming compensation and damages for land taken for a right of 
way, is within the statute of frauds; and if such agreement is executed 
by an agent of tlie land owner not in his immediate presence, then the 
authority of the agent must be in writing. 

7. Agency — one signing for another in his presence and at Ms request is 
not an agent Wliere a party acting on behalf of a railroad company pro- 
cured the defendant, who could neither read nor write, to execute an 
agreement for subscription, and also relating to the right of way ; and 
such party signed defendant's name to such agreement in his presence and 
at liis request: Meld, that sucli signing did not make the party the agent 
of the defendant so as to prevent him from setting up the misrepresenta 
tions and fraud of the party procuring his signature, in avoidance of the 
contract. 

Appeal from the Circuit Court of Warren county ; the 
Hon. Arthur A. Smith, Judge, presiding. 

Messrs. Stewart & Phet>ps, and Mr. Chas. M. Orson, 
for the appellant. 

Messrs. Harding, McCoy & Pratt, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was a proceeding instituted by appellant to condemn 
the lands of appellee for the uses of a railroad. The land was 
situate in the township of Spring Grove, Warren county, and 
this appeal is from the judgment of the circuit court of that 
county, in favor of appellee, for compensation and damages 
on account of land taken and damaged. 

To defeat appellee's right to compensation and damages, 
appellant introduced in evidence on the trial a certain in- 
strument in writing, to which appellant was only a beneficial 
party, if any, purporting to have been executed by fifty-seven 
persons, including the appellee, and embracing two distinct 
subjects : (1) That of conditional subscription to the stock 
of appellant's corporation. (2) That of securing to appellant 
the right of way through said township. 
15 — 65th III. 



226 E., R. I. tt St. L. K. R. Co. v. Shunick. [Sept. T., 

Opinion of tlie Court. 

The part of the instrument relating to subscription has no 
relevancy whatever to this controversy. But it is claimed by 
appellant's counsel, that the other part of the supposed agree- 
ment cut off' appellee's entire claim for either compensation or 
damages, and this is urged upon the ground of estoppel i)i 
pais. 

The terms of this part of the agreement are in substance : 
that in order that the right of way might be made secure to 
said company free of all charge and expense, and that the 
company might not be delayed in the construction of its line 
through said township, in consideration of one dollar to the 
undersigned paid, the receipt whereof was acknowledged, they, 
the undersigned, jointly and severally agreed to secure to the 
company, free of charge and expense to the same, the right 
of way on. over, and aoro.ss the lands in said township, such 
right of way to include a strip of laud one hundred feet in 
width, to be described as a strip of land fifty feet in width on 
each side of the centre line of the established survey of said 
railroad, on, over, and across the lands in said township of 
Spring Grove. 

The instrument contained the following, in the nature of a 
proviso: "This subscription and agreement to secure right 
of way is not to be put in jiossession of said railroad company 
until one hundred subscribers are secured thereto." 

The appellant, to show e()mj)liance with this proviso, intro- 
du(H'd another iuslrumcnt said to be, in substance, at least, a copy 
of tlie first, wliich jjurported to have been subscribed by fiftv- 
niue persons, ^^'hen these instruments were offered in evi- 
dence they were objected to by appellee's counsel. 

Appellee, as appears by the record, had a clear right to com- 
pensation and damages, and the verdict in his favor is sus- 
tained by the evidence unless he was debarred the right bv 
tlic instrument alleged to have been executed by him and 
offered in evidence. The burden was, therefore, upon appel- 
lant to make good the grounds upon which it sought to divest: 
him of his rights. Does this record show that appellee was- 



1872.] R., R. I. & St. L. R. R. Co. v. Shunick. 227 

Opinion of the Court. 

debarred his right to compensation and damage? We think 
it entirely fails in that particular. 

In the first place, the appellant failed to prove that one 
hundred persons had subscribed the agreement, even if both 
documents be regarded as one. There was no evidence of 
the genuineness of any one signature. The act of securing 
one hundred subscribers to the instrument was a condition 
precedent to the railroad company having any beneficial 
interest under it. It was not enough that so many names 
appeared, but it should have been shown that their signatures 
were genuine. This was not done. There was but one wit- 
ness on this point; he testified that he copied the second in- 
strument from the first. ''I went," he says, " with Porter to 
get subscribers to it. The first time we met to compare Ave 
did not have one hundred subscribers; the next time we did 
have what toe considered one hundred subscribers. I handed 
the paper to the railroad company." No witness testified to 
the genuineness of any of the signatures, and the expression 
that they had '" what they considered one hundred subscri- 
bers," will not do. 

The fair meaning of the proviso is, that the undertaking 
■or instrument was not to be delivered to the railroad com- 
pany until one hundred subscribers were secured thereto. If 
it be considered a contract between the subscribers, based upon 
the consideration of mutual promises, for the benefit of the 
railroad company, still it could not be operative to vest the 
■company with the beneficial interest until one hundred sub- 
scribers, who would be legally bound, were secured thereto. 

Secondly, there was not sufficient evidence shown to make 
the instrument effectual as an estoppel in jmis. It is upon 
that ground, only, that appellant's counsel rely. But to give 
it that effect, it was necessary for appellant to show that it 
accepted the terms of the instrument, and was so far governed 
and influenced by them in its action, that it would be a fraud 
upon or unjust to the appellant to allow the subscribers, and 



228 R., R. I. & St. L. R. R. Co. v. Shunick. [Sept. T. 

Opinion of the Court. 

especially ajipellee, to withdraw from or deny what was pro- 
posed or agreed by the instrument to be done. 

The case is utterly wanting iu any such element. There is 
no evidence that the appellant corporation accepted the terms 
proifered, or was in any manner influenced to alter its condi- 
tion, or govern its action thereby. 

Rut from what appears in this case, it would be monstrous 
to hold that appellee was debarred of his right to compensa- 
tion and damages, or either, by reason of the paper introduced 
in evidence. 

The appellant's road was so located as to run through 
a})pcllee's orchard and a part of his dwelling house. Appellee, 
as appears without controversy, is an unlettered man, being 
unable to either read or write. While at work iu his field 
he was approached by a man of the name of Holloway with 
this paper. Holloway knew appellee was unlettered. He 
did not read the paper to him, and stated only that part which 
related to the subscription. He not only did not read or 
state that part of the instrument relating to the right of way, 
but assured appellee that he could obtain compensation for 
his land if taken. Holloway testifies that he signed appellee's 
name to the paper by his direction. From this fact appel- 
lant's counsel insist that Holloway was appellee's agent, audi 
that being so, appellee could not avail himself of the mis-- 
representations of his own agent to avoid the instrumentJ 
On this ground the court below made an indefinite exclusion i 
of the evidence showing the circumstances under which ihei 
])aper was e.xccuted, but refused to give an instruction askedl 
by appellant directing the jury to disregard it, and appellant! 
now complains of such refusal. Holloway does not state whem 
or where he signed appellee's name; but only that he did iti 
by his direction. It must have been done then and there in' 
the jiresence of appellee, the latter merely using Holloway'S' 
hand, as it were, to write liis own name; or at some other 
time and j)laoe, in tiie al)senee of appellee, Holloway acting. 



1872.] R., R. I. & St. L. R. R. Co. v. Shunick. 229 

Opinion of the Court. 

in that behalf upon an alleged oral authority to make a con- 
tract for appellee. If he so acted in executing it, and the 
instrument itself amount to a contract with appellant, it was 
one virtually for the sale of an interest in land, and the au- 
thority to execute it as agent of appellee should have been in 
writing. If the name was signed by Holloway in appellee's 
presence and at his request, then the only reason which could 
be urged why it was not within the statute of frauds requiring 
the authority of the agent to be in writing, would be that 
appellee merely employed the hand of Holloway to write 
his name,, and that in such case the doctrine of agency in its 
legal sense would not apply. But assuming that to be the 
case, would anybody be heard to contend that although Hol- 
loway was not an agent in such sense as would require his 
authority to be in writing, yet he must be regarded as one to 
the extent of precluding appellee from setting up his mis- 
representations for the purpose of avoiding the instrument in 
the hands of appellant? We think not. . Such a rule would 
snatch the shield of the law from the wronged and bestow it 
upon the wrong doer; would take it from the unlettered, who 
need it most, and give it to those against whom it ought to be 
used. The appellant could not seek to take the fruits of the 
contract without adopting the means by which it was obtained. 
Besides, if the execution of the instrument was obtained in 
the manner disclosed by the evidence, it was void ab initio. 
It is laid down in Pigot's case, 11 Rep. 27, that if three dis- 
tinct bonds are written upon one piece of parchment, and one 
of them only is read to the obligor, and he, being a man not 
lettered, seals and delivers this deed, it is good for that which 
was read, and ab initio void for the others; and it is further 
said "that every deed ought to have writing, sealing, and 
delivering, and when any thing shall pass from them who 
had not understanding but by hearing only, it ought to be 
read also; and it is true that he who is not lettered is reputed 
in law as he who can not see, but hear only, and all his un- 
derstanding is bv hearing; and so a man Avho is lettered and 



230 Perteet 1-. The People. [Sept. T., 

Syllabus. 

can not see, is, as to this purpose, taken in law as a man not 
lettered; and therefore if a man is lettered and is blind, if 
the deed is read to him in any other manner, he shall avoid 
the deed, because all his understanding in such case is by his 
hearing." There is nothing in the evidence upon which to 
predicate negligence on the part of ap})ellGe. The mind 
of the signer did not accompany the signature, and the agree- 
ment in the particular in question, at least, was void. Lead 
V. Nichols, 55 111. 273. 

We are of tiie opinion that thesupj^osed agreement was not 
sufficient in any view to cut oif appellee's right to compensa- 
tion and damages; that substantial justice has been done and 
that the judgment should be affirmed. 

Judgment affirmed. 



Andrew J. Perteet 

tj. 

The People of tpie State of Illinois. 

1. ^TKTX}iKS— construction. It is a rule of construction that statiUes 
are to be read witliout breaks or stops, and it is never clear tliat words be 
lonp to any particular branch of a sentence. It is also a rule that the most 
natural exposition of a statute is to construe one part by another part of 
the same statute, and thus, from a view of the whole, discover the mean- 
ing; and a statute will be so construed that the whole may stand and eflecl 
be given to every pan and every woid. 

2. Chanok op venuk— m cnjntal case. The act of 1861, relating to? 
change of venue, expressly excepts from its operation applications for 
change of venue where the ollense charged is punishable witii death. In 
Bucli a case the petitioner is not bound to state the grounds of his belief] 
or knowledge of the prejudice, and the facts which induce a belief of su 
prejudice; and the people can disi)rove the facts stated iu the petition o: 



I 



1872.] Perteet v. The People. 231 

Opinion of tiie Court. 

in the class of cases in which the facts are required to he stated. There- 
fore, in capital cases, there can he no disproof of the petition, and the court 
has no discretion to refuse the application, 

Writ of Error to the Criminal Court of Cook county; the 
Hon. Erastus S. Williams, Judge, presiding. 

Mr. J. H. Knowlton, and Mr. Thomas H. Marsh, for the 
plaintiff in error. 

Mr. Charles H. Reed, State's Attorney, for the people. 

Mr. Justice Thornton delivered the opinion of the Court: 

As this case must be reversed, for the refusal of the court 
to grant a change of venue, we shall not discuss the other 
errors assigned, as their determination is not necessary for a 
second trial. They need not, and may never, again occur. 

It was enacted by the legislature in 1827, and such enact- 
ment has been in force since, except as changed by the act of 
1861, that, when any defendant in any indictment or infor- 
mation in any court in this state, shall fear that he will not 
receive a fair and impartial trial in the court, on account of 
the prejudice of the judge, or that the minds of the inhabit- 
ants of the county are prejudiced against him, he may apply 
to the court by petition, verified by affidavit, setting forth the 
cause of such application; and if reasonable notice has been 
given, that the court shall award a change of venue. No dis- 
cretion is given, but the statute is mandatory. 

In 1861 the chapter of the Revised Statutes of 1845, enti- 
tled "Venue," was amended. 

The first section provides that a defendant, in any indict- 
ment "/or any offense not punishable with death," in addition to 
the causes expressed in the amended law, shall state in his 
petition, verified by affidavit, the grounds of his belief or 
knowledge of the prejudice against him, and the facts which 
induce a belief of such prejudice. 



232 Perteet r. The People. [Sept.T., 

Opinion of the Court 

The second section authorizes the court to grant or deny the 
petition. 

The third section makes it lawful for the attorney of the 
people to deny the facts by counter-affidavits. 

The fourth, which is construed as a grant of power for a 
denial of the application in all cases, at the discretion of the 
judge, is in these words : 

"No court shall grant any change of venue in a criminal 
cause, where the facts set forth in the petition are disproved 
by counter-affidavits on the part of the people, nor unless said 
court shall be satisfied that said petition is true, in substance 
and fact, and that there is reasonable ground to fear that said 
defendant can not receive a fair and impartial trial in the 
court where the same is pending." 

It is a rule of construction that statutes are to be read with- 
out breaks or stops; and it is never clear that words belong to 
any particular branch of a sentence. It is also a rule, that 
the most natural exposition of a statute is, to construe one 
part by another part of the same statute, and thus, from n 
view of the whole, discover the meaning. 

We will road the statute under consideration, in the liglit 
of these rules. 

A defenchuit in any indictment for any oilense, except such 
as is punishable with death, may ap{)ly, by jietition verified 
by adidavit, for a change of venue, and in addition to an ex- 
pression of fear tliat he will not receive a i'air and impartial 
trial, on account of prejudice against him, shall state the 
grounds of his belief or knowledge that such prejudice exists, 
which ])etition the court shall have power to grant or deny ; 
and the State's attorney may deny the facts averred in the pe- 
tition, by counter-affidavits; and if the facts set forth in the 
petition are disproved by counter-affidavits, then the change 
of venue shall not be granted, nor shall it be granted unless 
the court is satisfied that the petition is true. 

But grant that the fourth sectit)n is intricate, obscure or 
doubtful, then the ride is, that the intent is to be discovered 



1872.] Perteet v. The People. 233 

Opinion of the Court. 

by a consideration of other parts of the same act. Often the 
words of one part, which has no ambiguity, will discover the 
sense of another. 

It is a rule of interpretation that one part of an act must 
be so construed by another, that the whole may stand. 

"The good expositor," says Lord Coke, "makes every sen- 
tence have its operation ; gives effect to every word ; will not 
construe it so that anything shall be vain or superfluous, but 
so expressed that one part of the act may agree with the other, 
and all may stand together." 

If the fourth section is to be construed as giving a discre- 
tion, in all cases, to reject the prayer of the petition, then the 
exception in the first section is superfluous. 

The makers of the law, in plain and unambiguous language, 
excepted offenses punishable with death from the operation of 
the first section. It would do violence to every rule of con- 
struction, and stultify the legislature, to hold that, having 
made an exception of a class of offenses, the same class was 
included in a subsequent section of the same law. The whole 
law would not then stand together, for the clause making the 
exception is rendered a nullity. This construction, so viola- 
tive of all rules of interpretation, so opposed to the intent of 
the makers, as evidenced by the exception, can easily be 
avoided by referring the words in the fourth section, "a crim- 
inal cause," to the class of offenses manifestly embraced in the 
first section, and which includes all offenses for which indict- 
ments or informations must be presented, except those pun- 
ishable with death. 

The rules of construction have been referred to upon the 
supposition that the act is involved in doubt and obscurity, 
When carefully examined and considered, there is none. 

The former law was amended as to all indictments for of- 
fenses, except indictments in capital cases . 

By the second section, if no counter affidavits are presented, 
the court must hear the jDetition, and grant or deny it, at dis- 
cretion. 



234 Perteet v. The People. [Sept. T.^ 

Opinion of the Court. 

By the third, the right is given to the people to deny the 
facts stated in the petition. 

By the fourth, the court is prohibited from granting the 
change " in a criminal cause where the facts set forth in the 
petition are disproved by counter-affidavits on the part of the 
people." 

The people can disprove the facts stated in the petition only 
in the class of cases in which facts are required to be stated. 
They are not required to be set forth in the petition for a 
change of venue in capital cases, and therefore, in such cases, 
there can be no disproof. They constitute the exception. The 
natural and necessary conclusion is, that the words ''criminal 
cause," in the fourth section, have reference to indictments for 
offenses other than those punishable with death. 

In this case the indictment was for murder, and was clearly 
within the exception contained in the act of 1861. There is 
no express repealing clause in the last law, as to indictments 
for murder, and we can not hold that so important a provision, 
affecting cases where life is involved, is repealed by implica- 
tion. 

The former law had been upon the statute book for thirty- 
four years at the time of the enactment of 18G1 ; it was in 
favor of life, and to enable the accused to have a fair and im- 
partial trial in some county whore no prejudice, which would 
prevent, existed against him. 

We can not suppose that the legislature intended to deprive 
him of this right, and, where he is accused of the most hein- 
ous crime, and liable to the severest punishment known to the 
law, to phicc iiim entirely at the mercy and the absolute dis- 
cretion of tiie court. 

It was error to refuse the change of venue, and for this the 
judgment is reversed and the cause remanded. 

Judfjment reversed. 



1872.] Keightlinger v. Eg an, etc. 235 

Sj'llabus. 



Jacob Keightlingee 



E. E. Eg AN, by his next friend. 

1. Animals — ease for personal injury hy dog. The fact that the owner 
of a dog knew that it was of a savage and ferocious disposition, and al- 
lowed it to run at large, is not of itself sufficient to make the owner liable, 
in an action, to one bitten by such d-og. The dog might have had such a 
disposition as to other animals, but not towards persons. To charge the 
owner, he must have had knowledge of the dog's propensity to bite man- 
kind. 

2. Same — instruction. Where the court instructed the jury that if they 
believed, from the evidence, that the plaintiff was bitten by the defendant's 
dog, and that said dog was of a savage and ferocious disposition, and 
known by the defendant to be such at and before the time of such biting, 
they should find for the plaintiff, it was insisted the error, if any, in the 
instruction, was cured by the proof of the disposition of the dog towards 
persons : Held, that as the evidence was not thus confined, but proof was 
admitted of the dog's attacking a horse, and that the witnesses considered, 
him a cross and unsafe dog, the instruction was erroneous. 

3. Same — instruction as to damages. In the same instruction, the court 
told the jury if they found for the plaintiff, thej'- might find such dam- 
ages as in their judgment, from the evidence in the cause, the plaintiff 
ought to recover: Held, that the instruction, in this respect, was errone- 
ous, as it left the jury to their individual notions of right and wrong in 
their assessment of damages, unguided by any legal rule of damages, and 
without regard to the damages sustained. 

4. Same — exemplary damages. It seems that, in an action on the case 
against the owner of a dog, by one bitten by such dog, the owner not be- 
ing present at the time of the injurj', the plaintiff is not, as a matter of 
course, entitled to recover punitive damages. The damages should be 
such as the plaintiff sustained. 

5. In a suit to recover damages from the owner of a dog which had 
bitten the plaintiff, the court instructed the jury that if the defendant kept 
the dog in question as a watch dog, and that as a watch dog, in the night 
time even, he was a dangerous and ferocious dog, and so known to be by 
the defendant, then it was the duty of the defendant to secure said dog, 
and not permit him to run at large: Held, that the instruction was calcu- 
lated to mislead the jury as to the issue involved, and lead them to undez- 
stand that the defendant might be liable in the action merely for a breach 
of duty in allowing the dog to run at large. 



236 Keightlinger v. Egax, etc. [Sept. T., 

Opinion of the Court. 

6. Same — where the plaintiff provoked dog to bite. If a plaintiff wantonly 
irritates and aggravates a dog by kicking it, and the dog should bite him, 
in repelling the aggression, and not from a mischievous propensit}% the 
plaintiH" can not recover from the owner damages caused by his own 
wrong. 

Appeal from the Circuit Court of Knox county; the Hon. 
Arthur A. Smith, Judge, presiding. 

Messrs. Craig & Harvey, for the appellant. 

Mr. P. H. Sanford and Mr. A. Hammond, for the appel- 
lee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an action of trespass on the case, to recover for 
per.sonal injuries alleged to iuive been received by appellee 
from a dog owned by appellant. 

Tlie plaintiif below recovered, and the defendant appealed. 

Tiie court below in.structed the jury, on behalf of tiie plain- 
tiff, as follows: 

"1. If the jury believe, from the evidence, that the plain- 
tiff, Edwin E. Egan, was bitten by the defendant's dog, at the 
house of Milton Lawrence, on or about the 4th day of April, 
A. D. 1868, and that said dog was of savage and ferocious 
disposition, and known by the defendant to be suclj at and 
before the time of sucii biting, then tiie jury should find for 
the phiintill" .such danuiges as iu their judgment, from the 
evidence in tiiis cau.se, the plaintiif ougiit to recover, not ex- 
ceeding the sum of §3000. 

"2. If the jury believe, from tiie evidence, that defendant 
kept the dog iu question a.s a watch dog, and that as a watch 
dog, in the night time even, lie was a dangerous and ferocious 
dog, and so known to be by the defendant, then the jury are 
instructed that it was the duty of tiie defendant to secure said 
dog, and not permit him to run at lars^c." 



1872.] Keighti.inger v. Egan, etc. 237 

Opinion of the Court. 

And the court refused tlie followins: instruction asked bv 
the defendant, to wit: 

"The jury are instructed that if they believe, from the evi- 
dence, that the defendant's dog was irritated and aggravated 
to bite the plaintiff, by being kicked by the plaintiif, that a 
man can't take the advantage of his own wrong, and receive 
a damage for an injury received as the result of his own care- 
lessness and recklessness; and if the jury believe, from the 
evidence, that defendant's dog bit the plaintiff, as the sole 
result of being kicked by plaintiff, and not from the fact of 
being a dangerous and savage animal naturally, they will find 
for the defendant." 

The action of the court as to these instructions the appel- 
lant assigns as error. 

The state of facts set out in the first instruction would not 
entitle the plaintiff to a recovery. The dog might have been 
of savage and ferocious disposition as respected other animals, 
and yet of a different disposition toward persons. 

To charge the defendant, he must have had knowledge of 
the dog's propensity to do similar mischief — that is, to bite 
mankind, and not animals only. 

Nor is it a sufficient answer to say that the instruction was 
harmless, as the evidence was in regard to the conduct and 
disposition of the dog toward persons. The evidence was 
not thus confined, there being testimony as to the dog attack- 
ing and biting the heels of a horse a witness was riding, and 
there being general evidence given by witnesses that they con- 
sidered the dog a cross one, and not a safe one, without any 
limitation of the testimony as to persons. 

The instruction respected a different cause of action from 
that set out in the declaration. The allegation therein was 
that the defendant kept a dog which he knew was accustomed 
to bite mankind, not that he kept one which he knew to be 
of savage and ferocious disposition. The instruction, in this 



238 Keightlinger v. Egan, etc. [Sept, T., 

Opinion of the Court. 

respect, should have conformed to the charge in the declara- 
tion. 

The instruction was wrong, upon the point of damages, in 
telling the jury they might find for the plaintiff such dam- 
ages as in their judgment, from the evidence in the cause, the 
plaintiff ought to recover. This left the jury free scope to 
give such damages as, according to their individual notions 
of right and wrong, they might think the plaintiff ought to 
recover, unguided by any legal rule of damages, and without 
regard to the damages sustained. 

It was not a case, upon the evidence, for the giving of ex- 
emplary damages ; yet the instruction left the jury at liberty 
to give any amount of punitive damages they might have 
thought the plaintiff ought to recover. 

Tlie plaintiff was entitled to recover only such damages as 
liC had sustained, and not such as the jury might think he 
ought to recover. 

The same objections, in part, are applicable to the second 
instruction; and it was, besides, calculated to mislead thejurv 
as to the issue involved, and lead them to understand that the 
defendant might be liable in the action merely for a breach 
of duty in permitting the dog to run at large. 

Both these instructions which were given we regard as 
erroneous. 

We think, too, it was error to refuse the instruction asked 
on behalf of the defendant. 

The supi)osetl kicking of the dog did not appear to haxc 
been done for a justi liable purpose, tlie only evidence on tin- 
subject being an admission of the j>laintiff, which was testi- 
fied to, that lie kicked tlie dog, and it bit him. If tlic 
plaintiff wantonly irritated and aggravated the dog, and the 
dog l)it him, in repelling the aggression, and not from a 
miscliievous propensity, which we understand to be the pur- 
port of tiie instruction, then the plaintiff should not be al- 
lowed to recover for damages caused by his own wrong. 

The judgment must be reversed and the cause remanded. 

Judgment reversed. 



1872.] Hitchcock v. Fortier et ah 239 

Syllabus. 



Henky Hitchcock 

V. 

Bartholomeav Fortier et al. 

1. Vendor and tekd^^— failure of title as a defense to suit for purchase 
money. Where a wife, having a claim to real estate, sold the same, her 
husband uniting with her in the conveyance, in which they covenanted 
that she was the sole heir of the party through whom she claimed to de- 
rive title, and that the grantors would warrant against all persons claiming 
through them ; and it turned out the claim was invalid, so that the pur. 
chaser acquired no title through the conveyance, but no fraud was prac- 
ticed upon him: Held, that, as the grantors were not guilty of any fraud, 
and made no covenants as to the title, the purchaser could not resist pay- 
ment of his notes given for the purchase money on the ground that he 
acquired no title, and where the notes were secured by mortgage, those 
holding under him were in the same position. 

2. If the owner and occupant of land buj-s an outstanding claim there, 
to to avoid litigation, and gives back a mortgage, he may resist its pay- 
ment if fraud has been practiced upon him, or if the vendor of the out- 
standing claim has entered into covenants that are broken; but if no 
fraud has been practiced, and no covenants made respecting the title, the 
mortgagor can not insist that the court shall order the sale only of such 
title as he acquired by his purchase. 

3. Deed — where a subsequently acquired title passes by. Where a party* 
received a conveyance for land without covenants for title, and no fraud 
was practiced upon him, and gave back a mortgage containing full coven- 
ants to secure the payment of the purchase money, and it proved that he ac- 
quired no title bj his purchase, but he afterwards did acquire title to a 
portion of tlie premises from another source : Held, that the subsequently 
acquired title inured to the benefit of the mortgagee by virtue of the coven- 
ants in his mortgage, and was subject to be sold on foreclosure. 

4. Mortgage — mortgagee, or his assignee in possession, must account for 
rents. Where a senior mortgagee, or his assignee, is in possession of the 
mortgaged premises, he must apply the rents towards the satisfaction of 
his debt, and can not permit the owner of the equity of redemption to re- 
ceive them to the prejudice of a junior mortgagee. If he does, it seems 
that he will be postponed to the junior mortgagee to the extent of the rents 
and profits he thus improperly allows the owner of the equity of redemp- 
tion to receive. 

5. Same — satisfaction — merger. In this case the senior mortgagee, be- 
fore the filing of his bill to foreclose, had been in the receipt of the rents 



240 Hitchcock i-. Fortier d al. [Sept. T., 

Opinion of the Court. 

and profits under an amicable arrangement with the mortgagor. After the 
bill was filed, one D acquired the equity of redemption, when the senior 
mortgagee had a receiver appointed to collect the rents from A, the tenant 
of the premises. D then conveyed the equity of redemption to B, his at- 
torney, and then bought the notes and mortgage of the senior mortgagee, 
who united with D in a notice to the receiver that he need no longer col' 
lect the rents, thus leaving D in possession, with A as his tenant. D, through 
his attorney, B, then sold the tenant. A, the propertj-, covenanting to con- 
vey, on full pa3-ment, not only the equity of redemption then standing in 
the attorney, but any title that might accrue under the foreclosure of the 
senior mortgage. The holder of the junior mortgage was seeking, by 
cross-bill in the same suit, to foreclose his mortgage, and to have the rents 
applied upon the senior one : Held, that if the purchase money, or enough 
of it to satisfy the senior mortgage, had been paid to D by A, the purchaser 
of the equity of redemption, there was no reason for keeping the prior 
mortgage alive as against the junior one. 

Appeal from tlie Circuit Court of Peoria county ; the Hon. 
S. D. PuTERBAUGH, Judge, presiding. 

This was a bill in chancery, by the appellee against McFad- 
den and others, for the foreclosure of a mortgage given by 
McFadden in April, 1849. The appellant, who was made a 
defendant, filed a cross-bill to foreclose a second mortgage 
given by McFadden on the same property. The material 
facts arc stated in the opinion. 

Mr. D. McCui.LocH, for the appellant. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

On the ISth of April, 1849, Angelica Fortier, claiming cer- 
tain property in the city of Peoria, sold the same to one 
McFadden, and, with ln-r husband, executed to him a con- 
veyance covenanting that she was sole heir of one Francis 
Willctte, and that the grantors would warrant against all per- 
sons claiming through them. McFadden executed to Fortier 
his notes for the unpaid portion of the purchase money, and 
secured them by a mortgage on the same premises. The 
mortgage contained full covenants. 



1872.] Hitchcock v. Fortier et ciL 241 

Opinion of the Court. 

McFadden, in February, 1850, bought from one Murray 
another title to a portion of the premises, under which he ac- 
quired possession. It is admitted that this Avas the paramount 
title, the Fortier claim proving to be invalid. 

In 1855, McFadden executed another mortgage to one Til- 
lay, to secure a debt due him, which mortgage subsequently 
came by assignment to Hitchcock, the appellant. 

The original bill in this case was filed to foreclose the mort- 
gage given to Fortier, and a cross-bill was filed to foreclose 
that given to Tillay. The circuit court held the first mort- 
gage valid, and decreed its foreclosure for the amount found 
to be due. Hitchcock, claiming under the second mortgage, 
brings the record here. 

It is contended by counsel for appellant, in an ingenious 
argument, that the title acquired by McFadden from Murray 
should not be considered as inuring to the benefit of Fortier, 
under the covenants in the mortgage made to him, and that 
those covenants should be considered as relating only to the 
estate acquired by Fortier from McFadden. There is, at its 
first presentation, a certain plausibility in this view, but we 
do not, on consideration, deem it sound. 

The only question is, whether the alleged debt from McFad- 
den to Fortier is a valid debt. If it is, Fortier is entitled to 
the same benefit from his mortgage as any other mortgagee, 
and can claim the application of the same rules of construc- 
tion that would be applied to any other mortgagee. 

Neither law nor equity confines the vendor of land to the 
land sold as a means of enforcing payment. By recovering 
judgment he may exhaust all the other property of his debtor, 
if necessary, in order to secure payment. So the vendor of 
land, taking back a mortgage, is not confined, on a foreclosure, 
to the title which he has sold, but can sell whatever title the 
mortgagor had at the making of the mortgage, or has since 
acquired, if the covenants in the mortgage are such as to pass 
a subsequently acquired title. 
16 — 65th III. 



242 Hitchcock r. Fortier et al [Sept. T., 

Opinion of the Court. 

A vendor of realty sometimes insists upon a mortgage cov- 
ering other property besides that sold. Instead of doing this, 
he may be content with a mortgage upon the property sold, if 
the mortgagor is willing to insert such covenants as will covei 
after-acquired titles, and forever estop him, and all claiming 
under him, from setting up a title adverse to that of the mort-^ 
gagee, in order to defeat the mortgage. When made a matter 
of contract, there is nothing inequitable in this — nothing 
which should restrain a court of chancery from enforcing the 
contract. 

If the owner and occupant of a piece of land buys an out- 
standing claim, to avoid litigation, and gives back a mort- 
gage, he may resist its payment, if fraud has been practiced 
upon him, or if the vendor of the outstanding claim has en- 
tered into covenants that are broken. But if no fraud has 
been practiced, and no covenants were given, the mortgagor 
can not insist that the court shall order the sale only of such 
title as he acquired by his purchase. Xo court would make 
such a decree, and yet we could not stop short of it if we 
were to hold as urged by counsel for appellant. 

As we have already said, the only question is as to the va- 
lidity of the debt. If valid, whether arising from the sale 
of a claim to the mortgaged premises, or from a loan of 
money to the mortgagor, the mortgagee is entitled to demand 
the benefit of the mortgage, with all the incidents attached to 
it by the law. 

Here, Fortier neither practiced a fraud nor covenanted as to 
his title, and it has long been settled in this State, that, whore 
there is neither fraud nor warranty, the purchaser of land can 
not resist payment of the notes he may have given, on the 
ground that lie did not acquire title. 

In ascertaining the amount due on the mortgage, the court i 
charged the mortgagee, Fortier, with rents and }>rofits for ai 
considerable i)eriod, but held him not liable subsequent to 
March 27, 1801. The refusal to charge him since that date 
is assiyrued as error. 



1872.] Hitchcock v. Fortier et al. 243 

Opinion of the Court. 
i • 

p We have not been aided in this case by an argument from 
appellee, and possibly may have overlooked some considera- 
tions that might have been urged in behalf of the decree as 
rendered. 

Some time prior to the commencement of the suit, Fortier 
had been in receipt of rents and profits by an amicable ar- 
rangement between him and McFadden. 

Soon after the suit was commenced, one Darst bought from 
McFadden the equity of redemption. Then, on the applica- 
tion of Fortier, the court appointed a receiver to collect the 
rents from one Phillips, the occupant of the premises. Shortly 
after this order was made, Darst conveyed the equity of re- 
demption to Lindsay, his attorney, and then bought from For- 
tier the notes and mortgage. 

The conveyance to Lindsay was probably made in anticipa- 
tion of this purchase, and to prevent the raising of any ques- 
tion in regard to a technical merger. But if it was for that 
purpose, there was nothing in it illegal or objectionable. 
However, when Fortier sold his notes and mortgage to Darst, 
they united in a notice to the receiver that he need no longer 
collect the rents, thus leaving Darst in possession, with Phil- 
lips as his tenant. The next step was the execution of a con- 
tract by Lindsay to Phillips, by which Lindsay, for a valuable 
consideration, sold him the property, and covenanted, on the 
payment of the purchase money, a part of which was paid in 
hand, to convey to him not only his own title as owner of the 
equity of redemption, but any title that might accrue under 
the Fortier mortgage. 

In this contract Phillips is recognized expressly as holding 
under Darst, and it is provided that, in case the premises are 
redeemed by the creditors of McFadden, from a sale under 
the Fortier mortgage, Lindsay shall repay to Phillips what- 
ever he mav have paid on the contract, and settle with him 
as tenant of Darst. 

If this transaction was what it purports on the face of the 
contract to have been — a sale by Lindsay of the equity of 



244 Hitchcock v. FortieFw et al [Sept. T., 

Opinion of the Court. 

redemption, with an agreement to convey also any title that 
might "be derived from a sale under the Fortier mortgage — 
and if the purchase money, or enough of it to satisfv the 
mortgage, has been paid to Darst, as is fairly to be inferred. 
from his own testimony, we do not see why this mortgage 
should be kept on foot to the prejudice of the junior mort- 
gagee. 

We do not see that Darst has any equities, as the mortgage 
owned by him is paid by money received from his tenant, 
Phillips. If Phillips has any equities requiring the Fortier 
mortgage to be kept alive for his protection, as against the 
junior mortgagee, we can only say that we have not discovered 
them in the record, and counsel have not appeared to point 
them out. 

Even if Darst did not receive, from the proceeds of Lind- 
say's sale to Phillips, enough money to satisfy his mortgage, 
or any part of the money, it does not appear why he did not 
continue to collect rents from Phillips, mIio was in possession 
as his tenant. If the senior mortgagee is in possession, he 
must apply the rents towards the satisfaction of his debt, and 
can not permit the owner of the equity of redemption to 
receive tiiem to the prejudice of a junior mortgagee. In that 
event, he might justly be postponed to a junior mortgagee to 
the extent of the rents and profits that he has improperly per- 
mitted the owner of the equity to receive. 1 Hilliard on Mortg. 
439 ; Coppering v. Cooke, 1 Vern. 270; Chapman v. Tanner, ib. 
267. 

As the record stands, we do not think justice has been done, 
and we must reverse the decree and remand the case, with 
leave to the parties to take further testimony if they desire. 

Decree reversed. 






1872.] Hughs et al. v. Washington ei al. 2-i5 

Syllabus. 



George R. H. Hughs et al. 



Richard B. Washington et al. 

1. Chancery practice — decree after destruction of the evidence, before it 
is supplied. Where the chancellor, after a hearing of the evidence on file, 
announced his conclusions, but, before any decree was signed or filed, the 
records and all the pleadings and proofs were destroyed by fire, and the 
complainants had supplied the pleadings, the defendants asked to have 
the entering of final decree postponed until they could supply the evidence 
upon which it was based, which motion was denied, and the court ren- 
dered a final decree against the defendants, from his recollection of the 
destroyed evidence : Held, that the court erred, and that it should have 
allowed a reasonable time for the defendants to have supplied the evidence 
before passing Che decree, as that was the only means by which the defend- 
ants could make their right of appeal availing. 

2. Same — preserving the evidence. The practice in the courts of chan. 
eery in this State, dispensing with the necessity of embodying the evidence 
in the decree, or its substance, as required under the Englisli system, does 
not, however, dispense with the necessity of preserving the evidence in the 
record upon which the decree is based. 

3. On appeal from a decree, each party has the right to rely upon the 
evidence heard in the court below, to test the correctness of the conclu. 
sions and findings of the court, and the appellate court will look into the 
record to see whether the evidence warranted the court below in finding 
the facts stated in the decree. The appellate court will be guided by the 
evidence, and not by the findings of the inferior court. 

4. Decree — wJien it is to be considered as entered. Under our practice 
in chancery, the decree is inchoate until it is approved by the chancellor 
and filed for record, or shall be recorded, which answers to the passing 
and entering it, in the English court. The mere oral announcement by the 
chancellor of his decision, and the grounds upon which it is based, or 
reducing them to writing, is no more than the minutes, in the English 
practice. Until the final decree has been filed or recorded, the chancellor 
may alter, amend, change, or even disregard, all he has said in his min- 
utes. 

5. Rehearing in ohancery. Before the final decree is filed for record, 
or is recorded, the chancellor, on his own motion, may order a rehearing 
in a chancery cause; but after the decree is spread upon the recoids, the 
whole matter is beyond his control, unless it be upon a bill of review, or a 
bill to impeach the decree, or some such subsequent proceeding. It is 
then, and only then, that it is the decree of the court and res adjudicata. 



246 Hughs et ah v. Washington et al [Sept. T., 

Opinion of the Court. 

Appeal from the Circuit Court of Cook county; the Hon. 
Wm. W. Faewell, Judge, presiding. 

Mr. "William L. Mitchell, for the appellants. 

Mr. Benjamin D. Magruder, and Mr. George F. Bailet, 
for the appellees. 

Mr. Justice ^yALKEPv delivered the opinion of the Court : 

These cases present substantially the same questions, and 
we, therefore, consider them as one. They were brought by 
the heirs of Jolm A. Washington against George R. H. Huglis 
and the heirs of Sanderson Robert. The bills were filed to 
set aside and annul contracts of sale of large and valuable real 
estate in the city of Chicago, by Hughs, as the agent of Wash- 
ington's heirs, to Robert. The ground alleged for rescinding 
the contract was fraud. 

The cases were heard together, in the circuit court of Cook 
county, on the 6th day of May, 1871. The evidence was 
very voluminous, and consisted largely of letters sent and 
received by the various j>arties, depositions and other docu- 
mentary evidence. 

After the hearing w:is had, it is claimed that the court be- 
low decided the cases in favor of the complainants, but, before 
any decree was rendered or enrolled, the fire of October of 
that year destroyed the court house and all the papers in the 
cases, both pleadings and evidence. 

Counsel agreed upon and restored the pleadings in the cases. 
The defendant then made a motion for time to retake and re- 
store all of the destroyed evidence, and urged their right to 
have tiie evidence restored and on file before a decree should 
be passed and filed for record or recorded. 

The motion of the defendants was denied, aud the ci)urt, 
from uiemory of the evidence, pronounced a decree in each 
case, and tliev were dulv enrolled and became final. From 



1872,] Hughs et al. v. "Washington et al. 247 

Opinion of the Court. 

that decree the defendants appeal, and assign the refusal of 
the court to stay the rendition of the decree until the evidence 
could be restored, as one of the errors in the case; and, from 
the view we take of the case, we deem it unnecessary to con- 
sider any other. 

According to the ancient practice in the English court of 
chancery, the decree recited at length the entire pleadings in 
the case, and the substance of the evidence contained in the 
depositions. That practice has been slightly modified in that 
court in modern times, but its decrees still contain full reci- 
tals. In our courts of chancery, the practice has permitted, 
but not required, such recitals, especially of the evidence. 
The practice has obtained neither in Great Britain nor this 
country to set out the depositions in full, but simply to recite 
the substance of the evidence they contain pertinent to the 
issue. 

As the practice in chancery has always required the evidence 
to be in writing, or if oral, to be reduced to writing, and pre- 
served in the record, it is apparent that the old practice of em- 
bodying it in the decree was not material, as it could at all times 
be referred to for the purpose of seeing upon what the decree 
was based, and whether it was sustained by the evidence ; and 
hence, our practice dispensed with embodying it in the decree. 
But the practice, as modified, does not dispense with the abso- 
lute necessity of preserving the evidence in the record. White 
V. Morrison, 11 111. 361; Wilkiie v. Pearce, 4:1 111. 413; Hill's 
Ch. Pr. 319, and numerous other cases, recognize the rule. 

On an appeal from the decree, each party has the right to 
rely upon the evidence heard in the court below, to test the 
correctness of the conclusions at which the court has arrived; 
and, in such a case, the finding of the facts in the decree will 
be controlled by the evidence in the record, where it appears 
that it has all been preserved. The appellate court will look 
into the record to see whether the evidence warrants the court 
in its action in finding the facts stated in the decree, and if, 



248 Hughs et ah v. Washington d at. [Sept. T., 

Opinion of the Court 

from all the evidence that was heard, it appears the chancel- 
lor erred in the finding of the facts, the appellate court will 
disregard the findings, and will be controlled by the evidence. 
Under the ancient practice, the decrees in these cases would 
have contained a complete record of the case, and from it 
alone the appellate court could have determined whether error 
had intervened; and if the evidence had been preserved in 
the record, the same result would follow where a complete 
record is presented for consideration. But in the position the 
case now occupies, the defendant has no power to show that 
the facts found by the chancellor in the decree are not war- 
ranted by tlie evidence. 

It is an undoubted right, enjoyed by every litigant, to have 
the judgment or decree to which he is a party passed upon 
and reviewed by an appellate court. This, the constitution 
has guaranteed to him; nor can the courts, by rules of prac- 
tice, deprive him of the right, or materially impair its effi- 
ciency. And, in all common law cases, under our statute, it is 
the duty of the party desiring to have the case reviewed on 
the evidence, to preserve it in the record, or the presumption 
will bo indulged that the court below acted properly in its 
decision. Not so with a decree, as no presumption is indulged 
beyond the extent to which it is sustained by the proofs ap- 
pearing in the record. Hence, it devolves upon the party in 
whose favor it is rendered to preserve evidence that will sus- 
tain the decree, or it must find that facts were proved that 
will su.stain the decree, or it will be reversed. 

Did the court below act prematurely in I'endering these 
decrees before the evidence was restored? 

It is contended tiiat inasmuch as the chancellor had heard 
the evidence, and had announced what his decision would be, 
and had written out a statement of the grounds for the de- 
cision, it must be considered that the case was finally de- 
cided, and nothing rt-mainrd but the formal matter of drawing 
and passing the decree. This is numifestly not the correct 
view of the question. Under the English practice, after the 



1872.] Hughs et al. v. Washington et al. 249 

Opinion of the Court. 

hearing is had, the chancellor pronounces his decree, and the. 
registrar takes minutes of it, and they are usually read over 
by him to the parties, or their solicitors, and copies of such 
minutes are generally applied for and furnished to the par- 
ties. If not satisfactory, by reason of their uncertainty, or 
that anything has been omitted, and the registrar refuses to 
correct them, application may be made to the court to correct 
them. After the minutes are settled, the decree is then drawn 
up by the registrar, and delivered to the party who demanded 
it. ''The decree having been returned, and an office copy 
taken by the adverse party, the next step to be taken is to 
have it passed and entered ; till which is done, the decree is 
only inchoate." 2 Danl. Ch. Pr. 670. But this practice has 
not, in form, obtained in this State. 

But our practice is, in principle, the same. The decree is 
inchoate until it is approved by the chancellor and filed for 
record, or shall be recorded, which answers to the passing and 
entering it, in the English court. The mere oral announce- 
ment of the chancellor of his decision, and the grounds upon 
which it is based, or the reducing them to writing, is no more 
than the minutes taken, in the English practice. The whole 
matter is completely under the control of the chancellor un- 
til the final decree has been filed or recorded. Until that 
time, he may alter, amend, change, or even disregard, all that 
he had said in his minutes; and if, upon further reflection, he 
became satisfied his conclusions were wrong, it would be his 
duty to reverse his announcement, and to decree as he was 
convinced the equities of the case required ; or if, upon fur- 
ther reflection, he should doubt the correctness of his conclu- 
sion, he has the undoubted right to order a rehearing, on his 
own motion, at any time before he has passed the decree, and 
it has been filed for record, or has been spread upon the 
record. But after that is done, the whole matter is beyond 
his control, unless it be on a bill of review, or a bill to im- 
peach the degree, or some such subsequent proceeding. It is 



250 Hughs et al. v. Washington ef ah [Sept. T.^ 

Opinion of the Court. 

then, and not till then, that it is the decree of the court, and 
is res acljiuUcata. 

There was, then, no decree of the court until it was ap- 
proved and filed for record, or was recorded: and that was 
the time the case was decided and the decree was rendered; 
and there was at that time, as a matter of fact, no evidence 
upon which to base the decree. Had the fire occurred, and 
the papers been destroyed before the court heard the evidence 
read, no one would pretend tlie court could have, after its 
destruction, rendered a decree until the testimony was re- 
stored, or if the evidence had been but partly read to the court, 
the same would be undeniably true; and we presume it would 
not be claimed that the court could have proceeded to decree, 
had the evidence been destroyed after it was heard by the 
court, and before he had announced what decree he intended 
to render; and, as we have seen, that announcement concluded 
no one, nor did it legally bind the court to adhere to the an- 
nouncement. 

The case, it is true, was before the court for decision, but 
was not finally decided until the decree was filed for record; 
and we have seen that there was no evidence at that time 
upon whicli to base the decree. 

The court below should have allowed the evidence to be 
supplied before the decree was passed and filed. It was the 
only means by which their right of appeal could be rendered 
availing to the parties. 

The destruction of the evidence was occasioned by one of 
those public calamities for winch the parties were in nowise 
responsible; and sucii being the case, neither of them should 
be prejudiced by it, beyond what can not be repairoil. 

Wo are clearly of opinion tliat the court below erred in 
reutU'ring the decree until the evidence was restored ; and, for 
that reason, the decree of the court below must be reversed 
ami the cause remanded, with leave to appellants to restore 
the evidence, anil, for that purpose, the court below will give 
them a reasonable time. 

Decree reversed. 



1872.J WoRMLEY V. Gregg. 251 

Opinion of the Court. 



KiNOWEK WORMLET 



John Gregg. 

1. Animal — -proof of knowledge of vicious habit in. Wliere plaintiff, ia 
an action on the case against the owner of a dog, to recover damages 
sustained by his team running away in consequence of an attack of the dog 
in a public street, alleged in his declaration that the defendant, well know- 
ing the dog was of a fierce, ferocious and mischievous nature, and therefore 
improper, dangerous and unsafe to suffer him to go at large upon the public 
streets not properly secured, and that the dog was accustomed to run out 
from the premises of the defendant, and it was contended that under the act 
of 1853, relating to dogs, it was not necessary to allege or prove the de- 
fendant's knowledge of the propensity of his dog: Held, that as the action 
was at common law without reference to this statute, it was necessary to 
prove the scienter as charged in the declaration. 

2. It is only when the declaration alleges the defendant to be the owner 
of the dog that the allegation of knowledge of its vicious propensity, and 
proof thereof, is dispensed with. 

3. New trial — on the ground of newly discovered evidence. Where an 
application for a new trial was based upon the fact of newly discovered 
evidence, which was merely cumulative, and it was not shown by the 
affidavit of the proposed witness : Held, no error to refuse the application. 

Appeat. from the Circuit Court of La Salle county; the 
Hon. Edavix S. Leland, Judge, presiding. 

Messrs. Stipp & Bowen, for the appellant. 

Messrs. Dickey, Boyi.e & E.icholsox, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court : 

On the 11th of February, 1853, the General Assembly of 
this State enacted as follows: That the owner of any dog or 
dogs shall be liable in an action on the case for all damages 
that may accrue to any person or persons in this State, by 
reason of such dog or dogs killing, wounding, or chasing any 
sheep or other domestic animal belonging to such other per- 
son or persons, and when the amount of such damage does 



252 WoRMi.EY 17. Geegg. [Sept. T., 

Opinion of the Court. 

not exceed one hundred dollars, the same may be recovered 
by an action before a justice of the peace. Sess. Laws 1853, 
p. 124. 

At the November term, 1869, of the La Salle circuit court, 
appellant brought an action on the case against appellee, 
alleging in his declaration that the defendant kept a dog, well 
knowing the dog was of a fierce, ferocious and mischiev- 
ous nature, and therefore improper, dangerous and unsafe to 
suffer him to go at large upon the public streets not properly 
secured, and that the dog was accustomed to run out from the 
premises of the defendant, and that he did run out from the 
premises and attack plaintiff's team on a public street in the 
village of Mendota, thereby causing the team to run away, 
whereby one of the plaintiff's horses was killed and his wagon 
and harness injured. 

The general'issue was pleaded and the cause tried by a jury, 
resulting in a verdict for the defendant. 

Plaintiff entered his motion for a new trial, and submitted 
therewith his affidavit of newly discovered evidence, going to 
the proof of knowledge by the defendant of the vicious nature 
of his dog. 

The motion was overruled and judgment rendered on the 
verdict, to reverse which the plaintiff appeals. 

His first point is that the verdict, '" at first blush," is con- 
trary to the evidence. We have the testimony before us. and 
have read it carefully, and can not concur with appellant in 
his view of it. The evidence leaves it quite doubtful whether 
the injury was caused by the vicious habit of the horse to run 
away without a sufhcient exciting cause, or by the onset of 
the dog. 

The next point made is, the refusal of the court to give 
plaintiff's first instruction, and modifying others. The first 
instruction was as follows: 

''First. Jf the jury believe, from the evidence, that on or 
about the 14th of March, 1809, the defendant kept on his 



1872.] ' WoRMLEY V. Gregg. 253 

Opinion of the Court. 

premises, and permitted to run at large, a dog which ran out 
from said premises and attacked and frightened the plaintiff's 
team, while being driven along a public street, then causing 
plaintiff's team to be frightened and run away, and one of his 
horses to be killed, then the jury should find the defendant 
guilty and should assess the plaintift"s damages such amount 
as they shall believe, from the evidence, was the reasonable 
value of the horse so killed." 

Appellant contends that refusing this instruction was error, 
but admits its propriety depends on the proper construction 
of the section of the act we have above quoted. 

Appellant contends that since the passage of this act, in an 
action like this, it is not necessary to allege or prove defendant's 
knowledge of the habits or propensity of his dog to commit 
injuries like those of which complaint is made. He admits, 
before the passage of this act, that it was necessary both to allege 
the scienter and to prove it. 

Again, he says the legislature intended by this act just 
what they have said, that any person to whom a domestic 
animal belongs may sustain an action on the case against the 
owner of any dog for all damages, and, further, that it is 
within the letter and spirit of the statute that the plaintiff 
should have been allowed to recover without proving the 
scienter. This statute, he insists, is suited to the times, etc., 
and the refusal of this instruction was a material error, and 
could not but injure appellant. 

Admitting all the appellant has urged on his view of the 
statute, it can not avail him, as his action is not brought under 
the statute. The declaration is in close conformity with the 
well known precedents in the books, that the defendant 
wrongfully and injuriously did keep a certain dog, &c., he, the 
said defendant, at that time well knowing, &c. 

As we understand the statute, it is only in a case where 
the declaration alleges the defendant to be the owner of the 



254 WoRMLEY V. Gregg. [Sept. T., 

Opinion of the Court. 

dog, that the allegation of knowledge and proof thereof is 
dispensed with. 

The action being at common law without any reference to 
the statute, the principle is too familiar to be discussed that 
the scienter must be alleged and proved. 

This element being omitted from the instruction, it was 
properly refused. 

This disposes of the case, and renders it unnecessary to say 
anything upon the other points made. 

The action being an action at common law, the knowledge 
of the propensity of this dog to attack a team of horses pass- 
ing through a public street of the village of Mendota, should 
be brought home to the defendant and proved. It is averred in 
the declaration simply that defendant kept a ferocious dog. dan- 
gerous to be allowed to run at large, well knowing the dog to 
be such; that he permitted the dog to run at large, and that 
the dog attacked the plaintiff's team on a public street in the 
village of Mendota. 

The common law precedents go further than this in the 
allegations. In alleging the scienter, it is " he, the said de- 
fendant, (hii-ing all that time well knowing that the said dog 
then was used and accustomed to attack and bite mankind, etc.," 
ifthatbetiie cause of action. As our statute gives other 
oauscs of action against an owner of a dog, the allegation 
should be chanfjed accordinsjlv. 

Tiie proof is also unsatisfactory as to the knowledge of the 
defendant, and the evidence newly discovered is merely cumu- 
lative on tiiat point, and the atlidavit is not by the party 
j)roposed tt) be made the Mitness. 

We perceive no error in the record and affirm the judg- 
ment. 

Judgment affirmed. 



1872.] Magee v. Magee. 255 

Opinion of the Court. 



William Magee 

V. 

Wilson Magee. 

1. Parent and child — ^pan-enVs right to cJtild^s earnings. The father is 
entitled to the wages and ordinary earnings of his minor son, unless such 
right has been voluntarily relinquished, or forfeited by some act on the 
part of the father. The rule grows out of the obligation of the father to 
maintain, support and educate his minor son. 

2. Same — parent not entitled to gifts or extraordinary/ gains of Ms son. 
While the father may rightfully receive to his own use all the wages or 
money which his minor son may acquire for his labor or service, he is not 
entitled to any extraordinary gains the latter may acquire out of the usual 
course of his service. 

3. No rule of the common law is better settled than that a minor may 
take property, real or personal, by gift, donation, devise or legacy, and hold 
the same independently of his father. "Whatever the infant acquires which 
does not come to him as a compensation for services rendered, belongs ab- 
solutely to him, and his father can not interpose any claim to it. 

4. SxuE— father has no right to son's bounty. Where a bounty was given 
to a minor to procure his enlistment in the military service of the United 
States, and paid to the father, held, that such bounty was not the ordinary 
gains of the son in any service, but a mere gift, and that the father was 
not entitled to retain the same as against his son. 

5. Mr. Chief Justice Lawrence and Justices Walker and Sheldon 
dissent, holding that the so-called bounty was not a gift or gratuity, in the 
true meaning of those terms, but a compensation for services to be ren- 
dered, and therefore belonged to the father of the minor. 

Appeal from the Circuit Court of Winnebago county ; the 
Hon. William Brown, Judge, presiding. 

Mr. James M. Wight, for the appellant 

Messrs. Lathrop & Bailey, for the appellee. 

Mr. Justice Scott delivered the opinion of the Court: 

The errox'S assigned on the rulings of the court in giving 
and refusing instructions, raise all tlie questions deemed ma- 
terial to the decision of the case. 



256 Magee v. Magee. [Sept. T., 

Opinion of the Court. 

The action was brought by appellee, who is the son of ap- 
])ellant, to recover a sum of money which it is alleged appel- 
lant received to his use in the spring of 1865. 

The authorities of the county of Cook^ and of the 9th Avard 
of the city of Chicago, in consideration that appellee would 
enlist in the military service of the United States, agreed 
to and did pay him $450, wiiich sum was paid over to ap- 
pellant, and is the money now in controversy. 

It is not denied that appellant received the bounty of 
appellee about the time he enlisted, in 1865, but the defense 
sought to be interposed to the action is, that appellee, at 
the date of his enlistment, was a minor under the age of 
eighteen years, and that appellant, as his father, was en- 
titled to his earnings during his minority, and the bounty j)aid 
to him was in fact earnings, and hence it is said no action can 
be maintained. 

It is a familiar principle, tiiat a father is entitled to the 
wages and ordinary earnings of his minor son, unless such 
riglit has been voluntarily relinquished, or forfeited by some 
act on the part of the father, 'i'he rule rests on the theory 
that, during niinoiity. hi.s father is under obligations to take 
care of, clothe and educate his minor son, and, in considera- 
tion thereof, lie is entitled to receive whatever wages the sou 
may earn during that period. 

While the father may rightfully receive to his own use all 
the wages or money which the son may acquire for his labor 
or service, he is not entitled to any extraordinary gains which 
the minor may acquire out of the usual course of his service. 

The case of Carson v. Watt<i, 3 Doug. 350, was an action by 
the master to recover prize money gained by an apprentice 
serving on boarti a letter of marque shi]), and it was held that 
the master coulil not recover, on the ground that it was not 
tiie ordinary earnings of tiie apprentice. 

Whatever may l^e the true definition of the money in this 
instance, whether it was earnings or mere bounty, it was cer- 
tainly not tlie ordinary gains of the son in any service, aud 



I 



1872.] Magee v. Magee. 257 

Opinion of the Court. 

under the rule in Carson v. Watts, supra, would not go to the 
father. 

No rule of the common law is better settled than that a mi- 
nor may take property, real or personal, by gift, donation, de- 
vise or legacy, and hold the same independently of his father. 
Parmelee et al. v. Smith, 21 111. 620. 

The money which is the subject of this action, is what it 
purports to be — bounty. It was not wages, in the ordinary 
meaning of that term. It was given to appellee to induce 
him to enter the military service of the United States for a 
certain fixed compensation. 

Anything that is a mere gratuity, a gift, to a minor, not com- 
pensation for services, belongs absolutely to him, and his father 
may not withhold it. 

An illustration may be given: If a person involved in 
sudden peril should be rescued by a minor, and such person 
should bestow upon him a munificent reward, surely his 
father could not claim it on the ground it was compensation 
for services. 

In Banks v. Conant, 14 Allen, 497, it was said by the court : 
"Whatever, therefore, an infant acquires which does not come 
to him as a compensation for services rendered, belongs abso- 
lutely to him, and his father can not interpose any claim to it." 

The case last cited is analogous to the one at bar, and it 
was there held that bounty paid to a minor to induce him to 
enlist in the military service, belonged to such minor, and his 
father could not recover it. 

In this instance the money was not given to appellee in 
consideration of services rendered or to be rendered, for he 
might have been discharged on the next day after he was 
mustered into the service, on account of sudden inability to 
serve longer, and he would still have been entitled to retain 
his bounty. 

The instructions given on behalf of appellee embody, in 
substance, the principles stated, and were such as the charac- 
ter of the case required. 
17 — 65th III. 



258 Burr et ah v. Mueller et ah [Sept. T., 



Syllabus 



There was no error in the court in refusing to give instruc- 
tions that asserted a contrary doctrine, and the judgment 

must be affirmed. 

Judgment affinned. 

Mr. Chief Justice LAWRENCE„Mr. Justice Walker, and 
Mr. Justice Sheldon, dissent, holding that the so-called 
bounty was not a gift, or gratuity, in the true meaning of those 
terms, but a compensation for services to be rendered, and 
therefore belonged to the father of the minor. 



William E. Burr et al. 

V. 

Adolph C. Mueller et al, 

1. PuRcnASEn— Wi/j/Ztfr purchaser of an undivided interest in land may, 
purcliase under incumbrance given by his grantor. Where A purchased a 
tract of land, giving a deed of trust to secure tlie deferred payments, and 
then conveyed the undivided half of the land to B, and afterwards gave a 
mortgage on his undivided half to the infant heirs of C, and 13, after this, 
purchased the entire premises at the trustee's sale under the deed of trust,, 
when the heirs of C filed their bill to foreclose their mortgage, alleging 
that the purcliase by A in the first instance was for the joint benefit of hira. 
self and B, and therefore B was bound to pay one-half of the incumbrance 
under which he acquired the whole title: Held, that the conveyance by Aj 
to B, in the absence of proof that it was made in pursuance of someorig-| 
iiial agreement, or under the relation of partners or principal and agent^ 
would be presumed to have been a sale or a gift, and that it would b 
presumed to liave been a sale rather than a gift; and that the fixct of sue 
conveyance, standing alone, could not be made the basis of a liability o: 
the part of B to pay A's individual notes for the jnirchase money. 

4. Tenants in common — right of one tenant in common to purchase hia 
co-tenanV 8 estate under a prior incumbrance given by the latter. Where 



i 



1872.] Burr et al. v. Mueller et al. 259 

Opinion of the Court. 

the owner of land, after giving a deed of trust thereon, conveyed the undi- 
vided half thereof to B : Held, that, as the interests of A and B, as tenants 
in common, did not accrue under the same instrument, act of the parties or 
by operation of law, in the absence of any engagement or understanding 
with one another, they did not stand in such confidential relations in re. 
gard to each other's interests that B would not be permitted in equity to 
purchase the estate of A at a sale under a power in A's trust deed. 

3. Same — may deal icith each other. It is the general doctrine that ten- 
ants in common are separately seized, and there is no privity of estate be^ 
tween them. They may enfeoff or convey to each other the same as if they 
dealt with a stranger. 

4. Same — who may take advantage of purchase made iy one tenant in com- 
mon of an outstanding incximhrance. Where one tenant in common acquires 
title under an outstanding incumbrance which each is equally bound to 
discharge, the purchase will not be void, but the other tenant, in equity, 
will have the right to elect within a reasonable time thereafter to avail 
himself of the purchase by offering to contribute his due proportion of the 
sum expended in the purchase; and this right of option is personal, and 
does not attach to the estate, so that a mortgagee of such tenant in common 
can not exercise the same. 

Appeal from the Superior Court of Cook county ; the 
Hon. Joseph E. Gary, Judge, presiding. 

Messrs. Moore & Caulfield, for the appellants. 

Messrs. Rosenthal & Pence, and Mr. Sidney Smith, for 
the appellees. 

Mr. Justice McAllister delivered the opinion of the 

Court : 

This is a bill to foreclose a mortgage under someM'hat pe- 
culiar circumstances. The court below sustained a demurrer 
to the bill, and no amendment being proposed it was dismissed. 
The plaintiffs bring the record to this court by appeal. 

It appears that William H. Brand. December 26, 185G, pur- 
chased and took a conveyance of the premises in question 
from one Keestling, giving to the latter, for the deferred pay- 
. ments of the purchase money, his three promissory notes of 
that date, payable to the order of Keestling in one, two and 



^60 Burr et al. v. Mueller et nl. [Sept.T., 

Oplniou of the Court. 

three years, respectively, after date, for the sum of §"2968.50 
each, with interest, and to secure which he, at the same time, 
executed a trust deed covering the premises purchased, to one 
Mueller, as trustee, with a power of sale in case of default in 
payment of any part of the sums secured. 

The bill also alleges that, after the execution of the notes 
and deed of trust. Brand conveyed an undivided half of the 
premises to one William A. Dudley; afterwards, on the 27th 
of June, 1859, Brand mortgaged his undivided half to mort- 
gagees described as "the infant heirs of AV. M. Brand, de- 
ceased," to secure an individual indebtedness to them. 

It further appears by the bill, that, default having been 
made in the payment of the notes to Keestling, the premises 
were sold on the 23d of July, 1862, by Mueller, the trustee, 
under the power of sale; were purchased by and conveyed to 
Dudley, the co-tenant of Brand. 

And it is alleged that the premises were, in the first instance, 
purchased and held by said Brand, in his name, but for the 
joint benefit of himself and said Dudley; that the latter was 
justly and legally bound to pay the one half of said notes so 
held by Keestling; that at the time of the sale by the trustee, 
it was Dudley's duty to have paid the notes, and not permit- 
ted the sale of the premises; that he and Brand each owed 
the whole of said notes, and the purchase at the trustee's sale 
was, in fact, made for and on the joint account of iiimself and 
said Brand; that such purchase could only result as a pur- 
chase by both ; and the deed from Brand to Dudley of an un- 
divided half was on record, showing that the premises were 
tiie joint property of the two. The bill also shows that Dud- 
ley and Brand were both dead, the latter dving the 14th of 
October, 1866. 

This bill was filed June 15, 1872, by appellants, claiming 
as mortgagees under the mortgage made by William H. Brand 
to the infant heirs of W. M. Brand, deceased. June 27, 1859, 
for the purpose of having the lien of that mortgage declared 
paramount to any title acquired under the trustee's sale, evem 



1872.] Burr et al. v. Mueller et al. 2o*. 

Opinion of the Court. 

as against purchasers from or under Dudley, and to have a 
decree of foreclosure and sale to pay appellants' debt. 

No fraud, or irregularity in the trustee's sale is alleged. 

The bill shows no relation such as partner existing between 
Brand and Dudley; nor does it profess to state that Brand 
purchased of Keestling, for the joint benefit of both, under 
any agreement between them to that effect, or that it was done 
with Dudley's authority, or without his authority, and subse- 
quently ratified by him. 

There is no allegation of any express agreement on Dud- 
ley's part to become responsible for the notes jointly with 
Brand, or otherwise; nor circumstances stated with sufficient 
certainty from which such an agreement can be implied. 

It is alleged that the conveyance of an undivided half was 
made to Dudley after the execution of the trust deed by 
Brand to Mueller. No other time or circumstance is stated 
except the mere fact that the deed to Dudley was recorded, 
but when that was does not appear. That conveyance, in the 
absence of other circumstances or allegation showing that it 
Avas made in pursuance of some original agreement, or under 
the relation of partners, or principal and agent, will be pre- 
sumed to have been a sale or a gift, and the law will pre- 
sume it to have been the former rather than the latter; but the 
fact, standing alone as it does, can not be made the basis of a 
liability on the part of Dudley to pay Brand's individual notes 
to Keestling. 

This case, therefore, is devoid of all special circumstances, 
imposing a duty to be performed by Dudley inconsistent with 
his character as purchaser at the trustee's sale. Then the real 
question is, did such a duty arise from the relation alone of 
tenant in common? Under the circumstances here disclosed, 
we think not. The interests of Brand and Dudley, as tenants 
in common, did not occur under the same instrument, act of 
the parties or of the law. 

In the absence of any engagement or understanding with 
one another, they did not stand in such confidential relations 



262 Burr et al. v. Mueller et al [Sept. T., 

Opinion of the Court. 

in regard to each other's interest, that one of them would not 
be permitted in equity to purchase the estate of the other at 
a sale under a power which the latter had given to an agent. 

It is the general doctrine that tenants in common are sepa- 
rately seized, and there is no privity of estate between them ; 
they may enfeoff or convey to each other the same as if they 
dealt with a stranger. 4 Kent's Com. 369. 

If Dudley had purchased and taken a conveyance directly 
from Brand of his interest, would counsel contend that the 
transaction was forbidden, by the rule of public policy upon 
which courts of equity act in regarding with jealousy the 
dealings between persons who stand in confidential relations 
towards each other? We think not. Then, if it was not the 
duty of Dudley to pay Brand's notes to Keestling, or such 
duty is not shown by the bill, what difference can there be, in 
principle, between a purchase made directly Avith Brand in 
2>erson, and one accomplished through his constituted agent in 
in tiie mode authorized? We confess ourselves wholly unable 
to perceive any diil'erence whatever, and are of the ojMnion 
that, upon principle and authority, Dudley had the right, un- 
der the circumstances of this case, to purchase his co-tenant's 
interest at the trustee's sale. H'mhley v. Green, 52 111. 230; 
BrUten v. Handy, 20 Ark. 381 ; IJuird v. Band, 1 Dev. & 
Batt. Eq. 524. 

Dudley did not purchase an outstanding title or incum- 
brance adverse to or affecting the common title of his co-tenant 
and iiimself, but he purchased the several estate of his co- 
tenant under a power and in tlie mode in whicii such co-tenant 
autliorizi'd tlu; same to be sold in case he failed to pay the 
notes lie had given lor j)urchase money. 

This case is entirely distinguishable from that of VanHorne 
V. Fonda, 5 Johns. Ch. R. 388, and all those of that class. 

But even conceding that this case falls within tlie principle 
of Van Home v. Fonda, supra, still, the purchase by Dudley 
was not void. It simply gave rise to an equity in Brand's fa- 
vor to elect witiiin a reasonable time to avail himself of the 



1872.J Town of Big Grove v. Wells. 263 

Syllabus. 

benefit of the purchase by offering to contribute his due propor- 
tion of the sum expended in the purchase. This was a per- 
sonal option, and not a right attaching to the estate. 

The bill is wholly silent in respect to any attempt to exer- 
cise this right of election on the part of Brand, or his heirs. 

The sale occurred in July, 1862. This bill was filed in 
June, 1872, by the mortgagees in a junior moi-tgage upon 
Brand's several estate. There is no principle, of which we 
are aware, upon which such mortgagees can exercise an option 
given by equity to their mortgagor personally, of which neither 
he nor his heirs ever availed themselves. 

The decree of the court below must be affirmed. 

Decree affirmed. 



The Town of Big Grove 

V. 

George Wells. 

1. Municipal subscription — bonds and coupons issued to different com- 
pany tJtan that named in call for election, void. In a suit upon coupons 
attached to bonds payable to the " Illinois Grand Trunk Railway Com- 
pany," and indorsed by the company to the plaintift', it was shown that 
the bonds and coupons were issued by the township authorities under a 
vote of the township at an election in which the call and notice of the 
election referred to the taking of stock in, and the issue of bonds to " the 
Eastern Division of the Illinois Grand Trunk Railway," formerly known 
as the Joliet and Mendota Division of the Joliet and Terre Haute Rail- 
road: Held, that under the vote the township officers had no authority 
whatever to issue the bonds and coupons, and that they were consequently 
void. 

2. If the Illinois Grand Trunk Railway Company and the Eastern 
Division of the Illinois Grand Trunk Railway were the same company, 



264 Town of Big Grove v. Wells. [Sept. T., 

Opinion of the Court. 

or the one had been merged into the other, it was necessarj- to have shown 
that fact to authorize a recovery on the coupons. 

5. The vote of a subscription and the issue of corporate bonds to a 
particular and short division of a railroad, will not confer any authority 
to issue bonds in aid of the construction of the entire line of the road, and 
payable to the company representing the whole of the proposed road. 

Writ of Error to the Circuit Court of La Salle county; 
the Hon. Edwin S. Leland, Judge, presiding. 

This was an action of assumpsit, brought by the appellee, 
against the appellant, in the circuit court of Kendall county, 
upon certain coupons attached to the bonds of the town pay- 
able to the " Illinois Grand Trunk Railway Company," and 
by it indorsed to the appellee. The venue of the cause was 
clianged to La Salle county, where a trial Avas had resulting 
in a verdict and judgment in favor of the appellee. The ma- 
terial facts upon which the case was decided are stated in the 
opinion. 

Mr. B. C. Cook, for the plaintiff in error. 

Messrs. Bushnell & Bull, and Mr. Geo. S. Eldridge, 
for the defendant in error. 

Mr. JusTiCK Thoiinton delivered the opinion of the Court : 

The coupons in suit are payable to the "Illinois Grand 
Trunk Railway." The petition for the election, the notice 
given, and all the proceedings, prior to the issue of the bonds, 
refer to the taking of stock in, and the issue of bonds to, 
"the Eastern Division of the Illinois Grand Trunk Rail- 
way." The petition further characterizes the road as "having 
formerly been known as the Joliet and Mendota Division of 
the Joliet and Terrc Haute Railroad," and the notice of the 
election speaks of it as " formerly known as the Joliet and 
Mendota Railway." 

We only know of the existence of any corporation known 
as the "Illinois Grand Trunk Railway," from a concessiou 



1872.] Town of Big Grove v. Wells. 265 

Opinion of the Court 

on the trial, that the portion east of Mendota was called the 
Eastern Division, and that west of it was called the Western 
Division of the " Illinois Grand Trunk Railway." We know 
nothing as to its location or termini, or its identity with the 
road in regard to which the election was called. 

The name of the corporation in the bond is entirely differ- 
ent from the name of the corporation in the petition and 
notice, and no proof has been submitted that they are the 
same, or that the one has been merged in the other. AVhen 
the discrepancy was shown to exist, it was incumbent on the 
plaintiff below to prove the identity of the two corporations. 
When the coupons had been introduced, and then the petition 
and notice of the election were presented, and there was no 
further proof, the conclusion was inevitable that the author- 
ities of the town had exceeded their power. 

They were limited to the terms of the notice calling the 
election. That indicated the corporation in favor of issuing 
bonds to which, the people consented by the vote. The bonds 
were then issued in favor of one corporation, and the vote 
was given in favor of another. 

One was called ''' the Eastern Division of the Illinois 
Grand Trunk Railway, formerly known as the Joliet and 
Mendota Railway." The other was called "the Illinois 
Grand Trunk Railway." How is it possible that there can 
be no variance, and that they are substantially the same? 
Were they the same in length, capacity, liability and expense 
of construction and operation? If so the proof does not show 
it. They certainly were not the same in name. One was the 
whole, the other a part. 

The fair construction of the language in the notice would 
restrict the subscription to a road formerly known as the 
"Joliet and Mendota Railway." These words must have 
been inserted for a purpose. They indicated to the voters the 
road in aid of Avhich they were called upon to vote. The proof 
wholly fails to disclose whether the road known as the Joliet 
and Mendota Railway, or whether the " Eastern Division " 



266 Tonx of Big Grove v. Wells. [Sept. T., 

Opinion of the Court. 

are more or less in length than the road operated by the payee 
corporation. 

The concession upon the trial does not aid the difficulty. 
The question is, what was the necessary understanding of the 
voters from the language of the notice, and not what might 
have been the fact independent of the notice. It does not 
indicate a M'estern division except by inference. The atten- 
tion of the voters was called to a known line of road, one 
with which they had probably been familiar. The designation 
was so specific as to direct the voters particularly to the 
" Eastern Division," and not to the entire line ; and so far as 
the record shows, the people may not have known, at the time 
of the vote, of any other road than the " Joliet and Mendota 
Railway." 

There was full power granted to vote a subscription, but 
we can not say that a subscription has ever been voted to the 
corporation to which the coupons are payable. The people 
might never have voted as they did if the name of the cor- 
poration claiming the bonds had been inserted in the petition 
and notice, and the result might have been altogether dif- 
ferent. 

It would be a dangerous precedent to sanction the validity 
of the bonds. The people niigiit then be easily entrapped to 
aid an enterprise which was not dreamed of at the time of 
election. An unfair advantage might readily be taken by 
calling the attention of the voters to a particular and .short 
division of a road, as was done in this case, and then claim 
the bouds for the con.struction of an extensive line in which 
they might never have embarked, and which might not be of 
the same local benefit. The majority of the court think the 
judgment should be reversed and cause remanded. 

Judgment reversed. 



1872.J Ely v. Hanford. 267 

Syllabus. 



James H. Ely 

V. 

George T. Hanford. 

1. Agency — agent — wlien liable to principal — money fraudulently ob- 
tained. Where an agent purchases land for his principal, the purchase 
being that of the latter, he is entitled to the full benefit of the contract; 
and if the agent, by representing that he paid a larger sum for the prop- 
erty than he actually did, obtains from the principal more than the actual 
price, the latter may recover of the agent the difference between the sum 
received by him and that actually paid. 

2. Sa.m.e— fraudulent sale by. Where an agent sells to his principal his 
own property as the property of another, without disclosing the fact of hia 
interest, this will be such a fraud, in law, as will give the principal the 
right to avoid the sale in toto. 

3. But where A and B had contracted for the purchase of a lot at $2500, 
and A, in a few days after, undertook to purchase the same lot as the agent 
of C, without disclosing his interest, or the fact that he and B had pur- 
chased it, but representing that it was wholly owned by another, and it 
could by obtained for $4050, which sum C paid him, and he caused the 
original vendor to convey the title to C : Held, that C, upon discovering 
the facts, had the right to avoid the contract, by tendering a re-conveyance, 
and recover back the consideration paid by him, but that he could not re- 
tain the title and recover from A the difference between what he paid and 
the price paid by A and B. 

4. But if A was the agent of C to purchase the lot before or at the 
time he purchased the same in the name of A and B, and paid only $2500 
therefor, and, by representing that the lot cost $4050, obtained the latter 
sum from his principal, then he would have been liable, in assumpsit, to 
the principal, for the difference. 

5. Estoppel in pais — to deny agency. Where A had contracted for the 
ptirchase of a lot, taking the contract to himself and B, and when em- 
ployed by C to purchase the same for him, concealed this fact, and repre- 
sented that the property was owned by another, and that it could be pur- 
chased at a sum considerably in excess of what it had been bought for, it 
was contended that A was thereby estopped from denying his agency in 
making his original purchase : Held, that, as C was not deceived as to the 
quality or value of the lot, the doctrine of estoppel could not be applied. 

6. Agency — misrepresentation — measure of recovery. Where the defend- 
ant, when employed as the agent of the plaintiff to purchase a lot for the 



268 Ely v. Hanford. [Sept. T., 

Opinion of the Court. 

latter, represented that the lot belonged to the former owner, and could be 
had for $4050, and thereby obtained that sum from the plaintiff, while, in 
fact, defendant and A held a contract of purchase for the same at $2500, so 
that A had the right to retain one-half of the difference, the court instruct- 
cd the jury that if the defendant represented that the lot belonged to an- 
other, when half of it belonged to himself, he was liable to pay the plain- 
tiff the whole of such difference: Held, that the instruction was clearly 
erroneous. 

Appeal from the Circuit Court of Cook county ; the Hon. 
Henry Booth, Judge, presiding. 

Mr. Sidney Smith, for the appellant. 

Mr. Consider H. Willett, for the appellee. 

Mr. Ji'STiCE Sheldon delivered the opinion of the Court : 

On the 13th day of July, 1870, Ely, the appellant, entered 
into a written contract with Christopher Metz for the ])ur- 
chase from the latter of a lot in the town of Hyde Park, for 
§2oOO, in the name of George W. Waite, but for the joint 
benefit of Ely and Waite, Ely making the first payment to 
Metz, of §012, on the same day. 

Afterwards, on the 30th day of the same month, !Metz exe- 
cuted a deed of the lot to Hanford, the appellee, in fulfilment 
of the contract of the former with Ely and Waite, Ely paying 
Metz the balance of the $2500 over an incumbrauce on the 
lot, and, at tlic same tiine, iulbniiing ^Ict/, that he had sold 
the lot to llaulord, as a reason wiiy he desired a deed exe- 
cuted to the latter. Hanford paid Ely lor tii.s lot (including 
this incumbrance wliich he assumed) the sum of $4050, and 
he brought thi.s suit in the court below to recover back the 
difl'erence between what he paid Ely for the lot and what Ely 
paid Metz for the same, on the alleged ground that Ely acted 
as his agent in making the purchase from Metz; and he re- 
covered a verdict and judgment for §1691. 44, being such dif- 
ference, with interest added. 

The form of the action was assumpsit, on the common 
counts. Ely appeals. 



1872.] Ely v. Hanford. 269 

Opinion of the Court. 

On the trial, the following instruction was given for the 
plaintiff: 

"The court instructs the jury, as matter of law, that if 
they believe, from the evidence, that George Waite held a 
contract for the purchase of the property mentioned in the 
deed admitted in evidence, and that the defendant obtained 
said contract from the owner, Metz, and paid him the pur- 
chase money, and had the contract made in the name of Waite^ 
and that said Waite and the defendant were both interested 
in said contract, and that, under such circumstances, Ely saw 
Hanford, and represented to Hanford that the property was 
owned by another, and that he, defendant, would act for Han- 
ford in the purchase of it for him of the owner; and if the 
jury further believe, from the evidence, that Ely paid such 
owner $2500, and represented to Hanford that he paid $4050, 
then the jury may take the defendant at his word, exactly in 
accordance with his representations to Hanford, that he was 
acting for him, and did purchase the property for the plain- 
tiff of the owner; and if the jury so believe, from the evi- 
dence, then they will find for the plaintiff, and assess as dam- 
ages the difference between the sum so actually paid and the 
sum so represented to have been paid in making such pur- 
chase, and interest on such difference, from the time of pay- 
ment, at six per cent per annum." 

And the following instruction, asked for the defendant, was 
refused : 

'• The plaintiff in this cause seeks to recover from the de- 
fendant the difference between what he paid to defendant,^ 
for the land in question, and what the defendant paid Metz 
for the same land, but the court instructs the jury that the 
plaintiff is only entitled to recover this difference upon the 
proof, to the satisfaction of the jury, that the defendant was 
the agent of the plaintiff at the time he contracted for the 



270 Ely v. Haxford. [Sept. T., 

Opinion of the Court. 

land with Metz ; therefore, if the jury believe, from the tes- 
timony in tliis cause, that the defendant contracted with 
Metz for this land, on the 13th day of July, 1870, by con- 
tract, in the name of Waite, for the joint benefit of himself 
and Waite, and that defendant had no transaction with the 
plaintiff relating to this until two days afterwards, and on the 
15th day of the same month, then the jury should find for 
the defendant." 

This action, as we conceive, is sustainable onlv upon the 
ground that the relation of principal and agent existed be- 
tween Hanford and Ely at the time the latter contracted with 
Metz for the lot, on the 13th of July. If, before and at that 
time, Ely had undertaken to act as the agent of Hanford, to 
make the purchase for the latter, he would be liable in this 
action to refund to Hanford the difference between what 
Hanford paid him and what he paid Metz for the lot; for, 
being Hanford 's agent, this purchase from Metz would be 
HAnford's purchase, and Hanford would, therefore, be en- 
titled to the full benefit of the contract. 

But if Ely, being part owner of this lot, by his contract 
with ]\Ietz, of July 13, 1870, assumed, on the 15th day of the 
same month, to act as Hanford's agent in the purchase of the 
lot for him, and did not disclose to Hanford the f:ict of his 
interest in the lot, but represented to him that the property 
was wholly owned by another, tiien Ely would have been the 
secret vendor of his own ]->i-operty, which would have been a 
fraud, in law; but the only etfoct would have been that the 
transaction would be voidable, at the election of Hanford; 
the principle being that "if an agent sells to his principal 
his own property as the property of another, without dis- 
closing the fact, the bargain, at the election of the principal, 
will be held void." 1 Story Eq. Jur. sec. 31(j. 

Hanford did not, upon discovering the fact that Ely was 
interested as jjartowner of the lot at the time he undertook to 
act as Hanford's agent for its purchase, tender a re-conveyance 



1872.] Ely v. Hanford. 271 

Opinion of the Court. 

and demand back the purchase money, but, instead, he elects 
to hold on to the land, and, at the same time, recover back 
that portion of" the purchase money which is in excess of what 
the land cost Ely and Waite. 

In giving the one and refusing the other of the above in- 
structions, the court must have regarded that it was not neces- 
sary, in order to entitle the plaintiff to recover the difference 
between what he paid the defendant for the lot and what 
defendant paid Metz for the same, that defendant should have 
been the agent of the plaintiff at the time he contracted for 
the lot with Metz, but that it was enough that defendant rep- 
resented that the property was owned by another. 

And appellee's counsel insists that, no matter what the fact 
was, if Ely, at the time of his employment as agent by Han- 
ford to purchase the lot, was, together with Waite, the owner 
of the lot by previous purchase from Metz, yet, if he repre- 
sented to Hanford that the property was owned by another, 
he is to be held, and taken to have been, the agent of Han- 
ford at the time of the previous purchase from Metz, and that 
he is estopped to show the contrary. 

We do not perceive how the doctrine of estoppel applies in 
this case. There is no claim that Hanford was deceived as 
to the quality or value of this lot, or that he paid more than 
it was worth. The only representation as to the price was that 
it could be purchased for $4500, Avith, perhaps, ten per cent 
off, as was done. We do not perceive wherein Hanford altered 
his situation, or could have been injuriously affected in con- 
sequence of Ely's representation being true or false, further 
than this, had Hanford known at the time that Ely was part 
owner of the lot, he might have exercised more caution in 
making the purchase, or have declined it altogether, but no 
more can be claimed, on this score, than the right to rescind 
the contract altogether, and recover back the whole purchase 
money. We can see no foundation for the asserted claim to 
enjoy the benefit of the contract by holding the lot, and to 
recover back from Elv the difference between what Hanford 



272 EiCHERSON et al. v. Sternburg, Admx. etc. [Sept. T., 

Syllabus. 

paid him for the lot and the original cost of the lot to Ely and 
Waite, in their purchase of it from Metz, provided the pur- 
chase from Metz was before the relation of principal and 
agent between Hanford and Ely arose. 

Under the view here taken, there was error in giving the 
plaintiff's instruction and in refusing that of the defendant. 

A further objection to the plaintiff's instruction is, that 
"Waite appears to have owned a half interest in this lot, un- 
der the IMetz contract, whereby he became entitled to half of 
the difference between §4050, what Hanford paid, and §2500, 
what Metz received for the lot; yet the purport of the in- 
struction was, that if Ely represented that all of this lot be- 
longed to another, when half of it belonged to himself, he 
thereby became liable to pay to Hanford not half, but the 
whole of the difference between what Metz received and 
Hanford paid for the lot — that is, he became liable to pay to 
Hanford not only the half of this advance, which would other- 
wise go to himself, but the other half, which Waite had the 
right to retain. We think this cleai'ly erroneous. 

The judgment of the court below must be reversed and the 
cause remanded. 

Judgment reversed. 



\ 



Amasa Richekson et al. 

V. 

Mary E. Sternburg, Administratrix, etc. 

1. EviDENCK — statements accompanying act as ret gestm. In a suit upon 
a note by tlie administratrix of an estate, the defendant, in order to prove 
payment, called a witness to show that he had paid the witness a certain 
■urn for Uie deceased on account of his indebtedness to the latter: ffeld, 



1872.] E,iCHERSON et al. v. SternbUxIG, Admx. etc. 273 
Opinion of the Court. 

that what the defendant said to the witness at the time of such payment 
was competent testimonj' for himself as part of the res gestm. 

2. Witness — competency of party to testify in Ms own belialf as against 
one suing as administratrix. A defendant, when sued by an administratrix 
upon a note given to an intestate, called a witness to prove the payment by 
him of a debt from the intestate to the witness, and called out what he said 
at the time of the payment, which went to show that the payment was 
not made on account of the note sued on, but on account of another dibt 
due from the defendant, and the plaintiff cross-examined upon this point: 
Held, that the defendant was not a competent witness to deny the language 
attributed to him by the other witness, the case not falling within the excep- 
tions named in the second section of the act of 1867. 

3. The exception to the rule excluding a party from testifying, in the 
second section of the act of 1867, which provides that, when any witness 
shall, in behalf of any party, testify to any conversation or admission of 
the adverse party, etc., the latter may testify as to the same matter, has no 
application when such party's own witness called by him testifies to his 
statement or admission ; nor is the rule affected by the fact that such wit- 
Qsss is recalled by the other party, and interrogated more fully as to the 
same point. 

Appeal from the Circuit Court of Will county; the Hod. 
JosiAH McEoBERTS, Judge, presiding. 

Mr. H. L. Richardson, for the appellants. 

Mr. E. E. Barber, for the appellee. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court: 

This was an action on a promissory note, brought by Mary 
E. Sternburg, administratrix of Philip Sternburg, deceased. 
She recovered judgment, and the defendants appealed. 

The defense set up was payment, and on the trial the de- 
fendants called as a witness, David Willard, who, upon his ex- 
amination in chief, testified as to certain statements made to 
him by the defendant, Richerson. On the cross-examination 
he testified to the same statements, and again on the re-exam- 
ination. He was called for the purpose of proving the pay- 
ment of a sum of money to himself by Richerson, on account 
18— 65th III. 



274: RiCHERSON etal. v. Stkknburg, Admx. etc. [Sept. T. 
Opinion of the Court. 

of a debt due the witness from Sternburg. He proved the 
pavraent, but his statement of what Richerson said in connec- 
tion with the payment went to show that it was not made on 
account of the note now in suit, but on account of another 
debt due from Richerson to Sternburg. He was afterward- 
called by appellee, and repeated the same testimony. The 
defendant, Richerson, then offered himself as a witness to 
denv the language which Willard had testified to his using, 
claiming that he was a competent witness, under the 4th ex- 
ception to the second section of the statute of 1867, in regard 
to the testimony of parties. The court held him incompetent, 
and that ruling is urged as a sufficient reason for reversing 
the judgment. 

The circuit court ruled correctly. The second section of 
the act of 1867 provides that a party shall not be a Avitness 
v/here the adverse party sues or defends as an executor, ad- 
ministrator, etc., except in certain cases. One of these is, 
where any witness "shall, in behalf of any party to such ac- 
tion, suit or proceeding, testify to any conversation or admis- 
sion by any adverse party," etc. 

Under this provision it is manifest that if Willard had been 
called by the plaintiff to prove the admission of Richerson, 
the latter could then have testified. But he was called by the 
defendant to testily in his behalf. It was expected, as already 
stated, to j)rov(; by iiim that defendant had j)ai(l to him a cer- 
tain sum of money on account of the indebtedness to Stern- 
burg evidenced by this note. 

What defendant said at the time was competent testimony 
«ven for himself, as part of the res gcstcB, for the purpt)sc of 
showing wiiy the money was paid. 

Tiie defendant called this out, and it j)roved to be nnfavor 
able to the defense he was making. JJiit tlie witnes.s was, 
nevertheless, ids witness, testifying in his l)ehalf, as tiiat 
phra.se is used in the statute, and in regard to his own conver- 
sation, ami not that of the adverse party. The case, therefore, i 



1872.] DuPage County v. Jenks et al. 275 

S5'llabus. 

is clearly not within the fourth exception to the second sec- 
tion of the statute. 

Nor can Ave regard the fact that Willard was subsequently 
called by the plaintiiF for further examination in regard to 
the circumstances of this payment as so changing the position 
of the case as to make the defendant a competent witness. 

On this examination AVillard stated nothing that he had not 
already stated when called for the defendant. This testimony 
had been put into the case by the defendant, and the fact that 
the plaintiff re-called the witness for the purpose of asking 
him some further questions in regard it, did not change the 
attitude in which the evidence stood before the court. It was 
still testimony offered by the defendant in his own behalf, and 
he could not become a witness merely to contradict it. 

It is objected that the court should have ruled out the evi- 
dence of Willard in regard to what was said by Cole, but 
this portion of his testimony was wholly immaterial. 

It is also insisted that the verdict is against the weight of 
the testimony. This was contradictory, and the case is not 
one where we can order a new trial on that ground. 

Judgment affirmed. 



The Boakd of Supervisors of DuPage County 

f. 
Charles Jenks et al. 

1. Taxes — right to enjoin collection, on hehalf of others. As each indi- 
vidual tax is a separate and distinct burthen, wholly disconnected from 
that of other persons, it follows that each individual has the legal right to 
contest the validity of the tax imposed upon him, but no tax-payer has 
the right to enjoin the collection of similar taxes imposed upon other per- 
sons for whom he is not agent, trjjstee, or acting in some other fiduciary 
relation. 



27G DuPage County r. Jexks et al. [Sept. T., 

Syllabus. 

2. In order to avoid multiplicit}- of suits, manj' persons may join in 
exhibiting a bill to enjoin the collection of a tax upon their property, by 
becoming plaintifls and parties to the record ; but it can not be held that a 
litigiousl}- disposed person may, on his own motion, file a bill in his own 
uame, and on behalf of all other tax-payers of his count}- or township, and 
thus stop the coUectiou of all the revenue within the localit3^ 

3. Same — constitutional limitation on the power of the legislature. Sec. 
2 of Art. 9 of the constitution of 1848, which declares that the general as- 
sembly shall provide for levying a tax by valuation, to be ascertained by 
some person or persons to be elected or appointed in such manner as the 
general assembly sliall direct, and not otherwise, is not a delegation of 
power to the general assembly, but a limitation on its power. It restricts 
the power and means of ascertaining the value of taxable property by re- ■ 
quiring such value to be determined by persons elected or appointed under ■ 
a law for that purpose. 

4. Same — legality of aiypointmeut of assessors under special law. "Where, 
during a contest of an election for the removal of a county seat, the legis- 
lature passed a special act requiring the business of the county to be trans- 
acted at the place certified by the proper officers as having been determined I 
the county seat, and requiring the board of supervisors to be convened at 
such place, and if all the assessor's books should not have been then re- 
turned, directing the board of supervisors to cause new assessments to be: 
made, and for that purpose conferred power to appoint suitable persons t»> 
assess the property in any town whose books had not been returned: Held,' 
there was no constitutional objection to this law, and tliat under it amplO' 
power was conferred on the board of supervisors to appoint one or morci 
assessors for any town whose assessment book had not been returned to< 
the county clerk within the time required. 

5. Same— constitutional power of the legislature to cJiange tlie mode of a-8-< 
aesaing property by dispensing with previous requirements. And in such a case, 
while new assessments were being made*by newly appointed assessors, a 
jpecial act was passed providing that tliese assessments, when made andi 
returned to the board of sujiervisors, should be deemed and held to be valid' 
in all respects, provided they were made in conformity with the constitu- 
tion: Held, that sucli act was not in violation of any constitutional pro. 
vision, its only ellect being to make the assessments valid, notwithstanding 
some of the pre-existing statutory requirements had not been observed. 

6. Where the constituted authorities, for any cause, refuse or neglecl 
to assess and collect the revenue of the government, the legislature is nol 
powerless to provide for the ai>pi)intment of other ofllcers and instrumeni 
talities that will. Such a i)ower is essential to the very existence of thii 
Stale government. 

7. Same — right to appoint more than one aasesaor for a totei:,, and to ap\ 
point non-resident of toirn. Where the assessors of certain towns refuseJ 



1872.] DuPage County v. Jenks et al. 217 

Sj'llabiis. 

to make and return assessments of their towns, and the legislature, by a 
special act, authorized the board of supervisors of the county to appoint 
persons to discharge this duty, and it appeared that no persons in such 
towns would act, and thereupon the board of supervisors appointed several 
assessors to make the assessment for each of such towns, who were not 
residents thereof: Held, on bill to enjoin the collection of the taxes levied 
on such assessment, that the board, being authorized to appoint "persons" 
to make the assessments, were not restricted to the appointment of one per- 
son only for each town, but might appoint as many as the exigencies of the 
case required; and even were that not so, yet as such persons were officers 
de facto, that the court could not inquire into the regularity of their ap- 
pointment except in a direct proceeding for that purpose. 

8. Same — assessor calling assistants to his aid. Where a bill to en 
join the collection of the taxes levied in a township, amongst otiiei 
causes for the relief, alleged that the assessor called others to assist him in 
assessing the property of the town, but failed to show what part of the 
property was assessed by such assistants : Seld, that even if this was ir 
regular, it would not aftect the assessment made by the proper officer, and 
the bill failing to point out what property was assessed by the assistant 
was clearly defective, and that if the books were returned by the assessoi 
in his name, a court of equity would not go behind the book to look foi 
irregularities. 

9. Sauk— for what equity will enjoin their collection. A court of equity 
will, with reluctance, stay the collection of a tax. It will not interfere by 
injunction to prevent such collection because of irregularities in the as. 
sessment. The exceptions to this rule are confined almost exclusively to 
cases where the tax itself is unauthorized by any law, or if authorized, 
only when it is assessed upon property exempt from the tax, and to cases 
where the assessment is fraudulently made. When the law authorizes the 
tax, the court will not inquire whether the persons imposing it are officers 
de jure or de facto. ^ 

10. Same — irregularities for lohich equity affords no relief. The follow- 
ing irregularities held to aflbrd no ground for a court of equity to enjoin 
the collection of a tax, viz: the fact that the assessor failed to call on per- 
sons for lists of their taxable property ; the fact that the real estate was not 
assessed in the names of the owners ; the fact the assessor was not a resi- 
dent of the town, or was irregularly appointed, and the fact that he did not 
go upon the town lots and call upon the owners to list the same, and as- 
sessed the same without reference to improvements, and in a partial man- 
ner, when no injury is shown to have resulted thereby to the complain- 
ants. 

11. Same — county and local taxes not levied upon — value as equalized by the 
State board. The State board of equalization equalize only with reference 



278 DuPage County v. Jenks et al. [Sept. T., 

Opinion of the Court 

to the State taxes, and not with the least reference to county and local tax- 
ation. The clerk is bound to extend the State taxes upon that assessment, 
but all other taxes are to be extended upon the assessment of the assessors 
as equalized by the county board. 

12. Constitutional law — act relating to county seat. "Where a vote 
was taken on the question of the removal of a county seat, which resulted 
in amajorit)' of votes in favor of the proposed change, as appeared by the 
certificate of the proper officers, but the result was contested by a bill in 
chancer}^ upon which a preliminary injunction was granted restraining 
the county officers from removing their offices and records to the place se- 
lected, and the legislature, during the pendencj^of this contest and the in- 
junction, passed an act requiring the count}' officers to transact the county 
affairs at the latter place: Held, that the act was not unconstitutional as 
determining a judicial question, but that it only required the officers to 
do what was their duty, independently of such act, — the certificate of the 
result affording pnma. facie evidence, until the question was judicially de- 
cided otherwise. 

13. Implied power //w?i express power. As a general rule, where pow- 
er is granted, it implies that any reasonable and proper means maj"^ be em- 
ployed to execute it, unless specific directions are designated. 

Appeal from tlie Circuit Court of DuPage county; the 
Hon. SiLVA.N'u.s \Vir>cox, Judge, presiding. 

Mr. H. G. Miij.ER, and Messrs. Van Armax & Yallette, 
for the appellant. 

Mr. CfiAKLKS Whkaton, und Mr. W. H. Cody, for the 
appellees. 

Mr. JusTiCK Waekku delivered the opinion of the Court : 

Tiiore were instituted two suits in chancerv, in the DuPage 
circuit court, one by Cliarles Jenkins and a number of the 
citizens of the town of Naperville, and the other by Edmund 
E. Page and a number of citizens of the town of Lisle, both 
townships in tlie county of Du Page, for the purpose of re- 
straining the collection of all taxes levied in those towns for 
the year 1868. 

The bills were against the collectors, and the board of 
supervisors of the county were admitted to defend. The bills 



1S72.] DuPage County v. Jenks et al. 279 

Opinion of the Court. 

both proceed upon the ground that the tax is unconstitutional 
and void. 

The court below, on the hearing, granted the relief and de- 
creed a perpetual injunction against the collection of the taxes 
thus levied. These bills both are substantially the same, hav- 
ing been so argued, and will be considered as one case. 

The bill alleges that the act of March 10, 1869, and the act 
of the 17th of April of the same session, are repugnant to the 
constitution of 1848, and the assessors who were appointed by 
the board of supervisors of the county to assess the property 
of these towns, did not take the oath of office ; that neither 
of them was a resident of the town, and were strongly preju- 
diced against the citizens of the towns, and that the assess- 
ments were made in an unlawful, improper, partial and grossly 
unjust manner; that the assessors did not call upon persons in 
the towns to list their property, as required by law; that they 
did not assess the real estate in the names of the owners, so as 
to designate each owner, but adopted descriptions of the same 
from the government surveys, nor are their improvements as- 
sessed on the sub-divisions of the owners ; that the assessors 
did not go upon the town lots, or call upon the owners in the 
village for the assessment of their lots; that after the comple- 
tion of the assessment, the assessors did not give notice of the 
time and place when and where they would meet with the 
board of review to hear objections to assessments; that some of 
the assessors were not appointed by the board of supervisors, 
but by those who. were thus appointed ; that the assessors did 
not report to the board of supervisors who appointed them, but 
to a new board ; that the clerk extended the tax for county pur- 
poses on the equalized valuation made by the board of super- 
visors, and not on that made by the State board, and jurisdic- 
tion is claimed upon the ground that the collector is not pe- 
cuniarily able to respond in actions at law to have the tax re- 
funded to the tax-payers. 

It seems that the assessors of these towns failed to return 
the assessor's book for the year 1868. This action on the part 



280 DuPage County v. Jenks ei al [Sept.T.. 

Opinion of the Court. 

of tliese officers seems to have been connected "vvith or have 
grown ont of the contest then in progress as to whether Xa- 
perville or Wheaton was the county seat. 

The legislature adopted a law, which was approved on the 
10th of March, 1869, providing that the public business of 
the county should be transacted at the town of AVheaton until 
the question as to which place was the county seat should be 
determined, and that the county clerk should at once convene 
the board of supervisors of the county, and if all the assessor's 
books should have been returned to the clerk, the board was 
required to proceed to perform their duty in levying the 
county tax; but if the books were not all in the hands of the 
clerk, the board was required to cause new assessments to 
be made; and the act conferred power to appoint suitable per- 
sons to assess the property of any town having failed to re- 
turn the assessment books. The act provided for the time 
and manner of obtaining judgment on the delinquent tax list. 

On the 18th day of March, 1869, the board of supervisors 
met, and, on the next day, appointed assessors for the various 
towns from which books had not been returned, and in three 
of them the ])ersons appointed proceeded to make the assess- 
ment, but in the towns of Xaperville and Lisle the persons 
appointed refused to act; other residents wore appointed, but 
also refused to act, and after being assured by the supervisors 
of these towns that residents could not be found to act, the 
board then selected persons from other portions of the county. 
The persons thus selected proceeded and made the assess- 
ments. 

The assessors gave notice that they would meet at the court 
liouse at Wheaton on the 10th day of May, 1869, to review 
the assessments, wlu'ii all persons might attend and would be 
heard. At the time and phice mentioned they met, and many 
})ersons attended from the towns, and were heard, and mis- 
takes, so far as detected, were corrected. The books were then 
returned to the count v clerk, the taxes were levied and 



1872.] DuPage County v. Jenks et al. 281 

Opinion of the Court. 

extended on the collector's warrant, as in other cases, and the 
books were delivered to the town collectors. 

The general assembly, on the 17th day of April, whilst 
these assessments were being made, passed an act which pro- 
vided that these assessments, when made and returned to the 
board of supervisors, should be deemed and held to be valid 
in all respects, provided they were made in conformity with 
the constitution. 

We are aware of no adjudged case in which it has been 
held that one tax-payer may enjoin the collection of a tax im- 
posed upon another person for whom he is not agent, trustee, 
or acting in some other fiduciary relation. To permit such a 
practice would be to encourage officious intermeddling in the 
affairs of others. 

It may be, and is, no doubt, true that many of the ctiizens 
of these towns felt themselves under at least a moral obliga- 
tion to lend the necessary support to the State, county, town 
and municipal governments under which they lived and by 
which they were protected in their persons and property, and 
were willing to waive any irregularities that may have inter- 
vened in levying these taxes. They, no doubt, felt the duty 
they owed to support the State and county governments by 
paying these taxes. They seem to have had no disposition to 
engage in a cause that would tend to embarrass the State, and 
to disorganize the county, and stop the administration of 
justice, even if the tax was not technically correct in the 
mode in which it was levied. 

In such a case, what right have other persons not appointed 
to act for them, who have not been requested or even desired to 
interpose, to elect themselves their agents to prevent them 
from discharging not only a moral but a public duty — the 
duty of paying a fair share of the taxes necessary to support 
their government. Each individual has, no doubt, the legal 
right, where a tax has been imposed upon him that he con- 
ceives to be illegal, to contest its validity, but we are at a loss to 
comprehend how he thereby acquires the right to determine that 



2S'2 DuPage County t-. Jenks et ol. [Sept. T., 

Opinion of the Court. 

his neighbor shall not pay a tax similarly imposed upon him. 
Each individual tax is a separate and distinct burthen, and 
stands wholly disconnected from that of other persons. Com- 
plete justice may be done in each several case, and the matter 
there adjudicated can not be called in question by others; nor 
can any claim be interposed in regard to the tax then litigated 
by other persons not parties to the suit. Hence there can be 
no necessity to make others parties. 

It is true that, to avoid a multiplicity of suits, many per- 
sons, determined to contest the validity of a tax, may, if they 
choose, join in exhibiting a bill by becoming plaintiffs and 
parties to the record, but it can not be held that a litigiouslv 
disposed person may, on his own motion, file a bill in his own 
name and on behalf of all other tax-payers of the county, and 
stop the collection of all the revenue for the support of the 
State, the county, townships, cities, towns, schools and other 
municipalities. Our government is not and never can be at 
the mercy of one or a few individuals, thus to bring it to an 
end by the forms of law. To so hold would be a perversion 
of the purposes for which a court of chancery was created, 
and would be a power never conferred, destructive to the 
peace and good order of society, if not to the government 
itself Such a power can never be exercised by any court. 
It would be revolutionary and highly dangerous to all our 
institutions. It was, then, manifest error to enjoin the entire 
tax of these towns, even if the levy was all tliat is urged 
against it. 

Nor can we perceive wherein the acts of the legislature, 
which are impugned, are unconstitutional. 

The constitution of 18-48, Art. IX, sec. 2, declares that the 
general assembly shall provide for levying a tax by valuation, 
that every person shall pay a tax in proportion to the value of 
his or her property, such value to be ascertained by some per- 
son or persons to be elected or appointed in sucii numncr as 
the general assembly shall direct, and not otlierwise. 



1872.] DuPage County t/-. Jexks e^ o/. 283 

Opinion of the Court. 

This was not a delegation of power to the general assembly, 
but a limitation on their power. Had this provision not been 
adopted, the general assembly could have imposed a tax in 
ary mode it might choose, or, having required the tax to be 
levied by valuation, they could have adopted any means to 
ascertain the value they might regard expedient and proper. 

That clause, however, has restricted the ascertainment of 
the value of taxable property to persons who shall be elected 
or appointed under an act of the general assembly. It fully 
recognizes, it even specifies, the power to appoint such persons; 
and the general assembly, by the act of the 10th of March, 
undeniably conferred ample power upon the board of super- 
visors to appoint these assessors, and they were appointed 
strictly in conformity with the provisions of that act. In this 
we entirely fail to see how or in what the general assembly 
has transcended its power. 

Nor can we say that the act of the 17th of April infringes 
the organic law. There is no constitutional provision which 
has prescribed the details that shall be observed in making 
assessments for taxation. These were left to the general as- 
sembly that they might alter, change or repeal them as fair- 
ness, justice or expediency might require; and all this act pro- 
fesses to do is to make these assessments valid, notwithstand- 
ing some of the statutory requirements may not have been 
observed. 

That such a law might be passed applying to all assessments 
we presume will not be questioned, and to hold that it is pro- 
hibited when but one county is concerned, would be to hold 
that all of the immense number of local and special laws 
adopted by the general assembly since the constitution of 
1848 went into operation, are void, and that no rights have 
been acquired under them. It would be to hold, under that 
instrument, the legislature was powerless to adopt any but gen- 
eral laws. 

It can not be that where, from any cause, the constituted 
authorities refuse or neglect to assess and collect the revenue 



284 DuPage County v. Jenks et al. [Sept. T., 

Opinion of the Court. 

of the government, that it is powerless to provide other oflB- 
cers and instrumentalities that will, and thus preserve itself 
from destruction. 

The framers of our constitution could never have supposed 
they were depriving the legislative branch of the government 
of a power so essential to the very existence of the govern- 
ment. 

No one can imagine that, because the officers, whom the 
people elect, refuse to impose taxes upon, or collect them 
from their constituents, they can thereby successfully obstruct 
the government iu obtaining the revenue, without which it 
can not long survive; or that they can thus free the people 
from the just burthens of government. A government so 
powerless could not long survive, nor could it aiford needful 
protection to its people. All governments entitled to the 
name must be invested with much more ample means for their 
preservation. 

These laws are clearly constitutional in the requirements 
for the appointment of assessors and the imposition of tlie 
taxes authorized by law. 

It is, however, urged that the general assembly had no con- 
stitutional power to require the ])ublic business of the county 
to be j)erformed at the town of AVhoaton. as the contest as to 
the vote on that question was pending and undetermined. 

It is enough to say that an election had been held, and the 
certilicate iiad been given in favor of Wheaton. Under this 
certificate, without anything further, had no injunction to pre- 
vent been obtained, it was the plain and manifest duty of the 
county officers to have removed their Gooks, papers and archives 
to Wheaton. 

The certificate of the result of the election made Wheaton 
prima facie the county seat, and all public business transacted 
there would be valid and binding until it sliould be declared 
by competent authority not tiie county seat, and this, too, 
ulthougli itmiglit bo done in violation of an injunction. This 
being so, the legislature declaring that all public business 



1872.] DuPage County v. Jenks et al. 285 

Opinion of the Court. 

should be transacted there conferred no new power, decided 
nothing, but only recognized the law as it existed before the 
enactment. It changed the rights and duties of no one, un- 
less it was to authorize the officers to trausact business there, 
notwithstanding the injunction. 

It is urged that the board of supervisors had no power to 
appoint more than one person in each town to make the assess- 
ment under the act of the 10th of March, and for that reason 
the board of supervisors exceeded their power, and the assess- 
ment is void. 

The act authorizes the board to appoint persons for the pur- 
pose, without restricting the number for each town, and it is 
not a forced construction to hold that the board might appoint 
as many as the exigencies of the case required. 

As a general rule, when power is granted, it implies that 
any reasonable and proper means may be employed to execute 
it, unless specific directions are designated. They were author- 
ized to appoint persons for the purpose, and the number was 
not limited. 

But even if the board had exceeded their power, the persons 
appointed were officers de facto, acting under color of office, and 
we would not, in this collateral proceeding, inquire into the 
regularity of their appointment, or try a contested election to 
determine whether an assessor was duly elected. That be- 
longs to a direct proceeding. 

It is urged that, in making these assessments, the persons 
appointed called others to their assistance, and that this was 
irregular. Suppose it was, that could not affect any assess- 
ment not made by those thus assisting the assessors. It could 
■Qot, in the remotest degree, affect the assessment made by those 
^ho were appointed by the board of supervisors. As well 
might it be contended that an irregular or illegal assessment 
of the property of an individual in a county would render the 
entire assessment of the county void, and we can not conceive 
that any one could be found to insist on such a proposition. 



286 DuPage County v. Jexks et al. [Sept. T., 

Opinion of the Court. 

As we understand the evidence, the books were returned by 
qnd in the name of the assessors, and not their assistants. 
This being so, a court of equity will not go behind the books 
to inquire whether the officer performed all the duties strictly 
according to law. It will not seize upon mere irregularities 
to enjoin the collection of the revenue, and thus embarrass 
the administration of the government. 

The bill does not specify what portion of the property was 
assessed by the assistants, and even if irregular, there would 
be no means of separating such assessments from those made 
by those who Avere appointed. 

It is with reluctance that chancery stays the collection of 
the public revenue. It is a branch of equity jurisprudence 
of very modern introduction, and of doubtful expediency. It 
may well be doubted whether it would not have been better 
for the })ublic welfare had the parties been left to seek their 
remedies at law in all cases, as they were, until recently, re- 
quired to do. But this court has held that, in a class of cases 
involving the collection of a tax, a court of chanceiw might 
interpose its power to prevent its collection. 

It has been held that the courts will not interfere by 
injunction to prevent the collection of taxes because there 
have been irregularities in the assessment; and the exceptions 
to this rule are confined almost exclusively to cases where the 
tax itself is unauthorized to be imposed by any law, or if 
authorized, only when it is assessed on property exempt from 
the tax. And it has also been hekl that, where the law author- 
izes the imposition of a tax, the court will not inquire wiiother 
the persons imposing it are officers de jure or dc facto; so the 
officers are acting in and discharging the duties of the office 
is all the court will require: and it has also been held that the 
omi.ssion to (ax property not exempt will not invalidate other 
taxes levied on property subject to the burthen. Chicago, B.& 
q. R. R. V. Frary, '12 ill. 34; Munson v. Minor, 22 III. 595; 
Mrizv. Amicnson, 23 III. 463; Schofield v. Watkins, 22 III. 66; 
Merriti v. Favris, 22 III. 303; liyan v. Anderson, 25 III. 372. 



1872.] DuPagp: County v. Jenks et al. 287 

Opinion of the Court. 

And in the case of County of Cooh v. Chicago, B. & Q. B. JR. 
35 111.460, it was said that, even in such cases there must be 
special reasons for the int-erposition of the court to restrain 
its collection. 

In other cases it has been held that the court would afford 
relief where the assessment was fraudulently made, or persons 
have assumed the power to impose the tax on property when 
the law had conferred no such power, or where the property 
was exempt. Drake v. Phillips, 40 111. 388; Vieley v. Thomj^- 
son, 44 111. 9; Board of Supervisors v. Campbell, 42 111. 490; 
Cleghorn v. Postlexoaite, 43 111. 428 ; Darling v. Gunn, 50 111. 
424. These cases lay down the rules by which courts of equity 
will act in restraining the collection of taxes, and we have no 
inclination to enlarge the rule. 

As to the objection that the assessors did not call on per- 
sons for a list of their taxable property, — that was an omis- 
sion of duty on the part of the assessors, but is only an irregu- 
larity, and affords no ground for restraining the collection of 
the tax. 

It was not a fraud, or if so, not such as authorizes an injunc- 
tion, and if injury has resulted, the party has his remedy at 
law. But even if it could be held to be a ground for equitable 
relief, it is not alleged in the bill which individuals Avere not 
so called upon. Nor does the objection that the real estate was 
not assessed in the name of the owner, afford the slightest 
ground for equity to restrain the collection of the tax. Each 
owner could find his land on the list, and pay his tax with the 
same effect as if listed in his own name. Although the gov- 
ernment surveys were followed in making assessments, each 
owner could pay on his own land by a proper description, and 
that would discharge it from the burthen. This affords no 
ground for enjoining the tax. 

The objection that the assessor did not go upon the town 
lots, and that the owners were not called on to list the same, 
and that they were assessed in a partial and unjust manner, 
without reference to improvements, or the difierence in value 



288 DuPage County v. Jenks et al. [Sept. T., 

Opinion of the Court. 

of other lots on account of improvements, may or may not 
have been irregularities. If there was any injury done to 
complainants by such an assessment, it does not appear from 
the allegations of tlie bill. It does not state that the irregu- 
larity, unfairness, partiality or injustice operated in the least j 
degree to the injury of complainants. It may have been an 
irregularity, but if so, it is no ground for enjoining the tax. 

If the parties have sustained injury, they must seek their 
remedv at law; and the failure to give notice that the asses- 
sors would meet the town clerk and supervisor to review the 
assessment rolls, falls within the same rule; and that the as- 
sessors did not report to tlie board of supervisors who ap- 
pointed them, is without force. 

It was also objected that the clerk extended the tax on the 
assessment rolls made by the town assessors, and not on the 
equalized valuation fixed by the State board. In this we can 
not see the slightest objection. The State board only equal- 
izes in reference to State taxes, and not with the least refer- 
ence to local taxation. 

Tlie clerk is bound to extend the State tax on that assess- 
ment. It is believed to be the uniform practice throughout 
the State for county clerks to extend the tax for county and 
other local taxes on the original assessment, as equalized by 
the board of supervisors, and the State tax on the equalized 
value fixed by the State board. Any other practice would 
lead to confusion and embarrassment. 

The board of supervisors are required by law to levy the county 
tax at their annual meeting in September, and town, school 
and other local taxes are required to be levied and returned 
to the county clerk by or before that time; and these levies 
can only be made on the valuation returned by the assessors, 
as there is no other means of ascertaining the rate per cent, 
and if the valuation is reduced by the State board, there would 
be a deficiency in the required amount, or if it should be 
i-aised, there would be an excess over and above the amount 



1872.] DuPage County i-. Jenks d al. 289 

Opinion of the Court. 

required and intended to be levied, if these taxes were ex- 
tended on tlie equalized value fixed by the State board. 

The construction given the law by the county clerks leaves 
the operation of the law free from objection or inconvenience, 
and is believed to be correct. 

We fail to find that the bill alleges, or that the proof shows 
that complainants, by these assessments, were required to bear 
an undue proportion of the burthen of administering the af- 
fairs of the county. 

It is not, so far as we have been able to see, alleged or 
shown that the valuation of property in these towns is higher 
than in other portions of the county. And if they only have 
imposed on them their fair share of that burthen, then they 
have no just right to complain. 

There is no pretense that the State tax is not warranted by 
law. It is authorized to be levied, and required to be col- 
lected. Nor can it be successfully denied that the law author- 
izes and requires a county tax to be imposed and collected. 
And in doing so, in this case, the board of supervisors have 
not exceeded the per cent the law has empowered them to 
levy, and a court of equity will not restrain its collection be- 
cause it is claimed that it may be misapplied, or even that the 
county authorities intend to misapply a portion of the fund, 
when collected. If, after it is paid into the treasury, such an 
effort shall be made, then, and not till then, will a court of 
equity interpose to prevent the wrong. 

To stay the collection of all taxes until a court of equity 
could, after the delays incident to proceedings in that forum, 
ascertain whether a portion of the fund was designed to be 
misapplied by school directors in one of the districts in the 
county, or the town board of auditors, or some other munici- 
pality, would be highly prejudicial to the public interest. 
The taxes were authorized by the statute; were levied for 
State, county and local purposes. They were levied by offi- 
cers whom the law had vested with the power to make the 
levy, and the assessments were made by persons acting as 
19— 65th III. 



290 McAVHorn'ER ef ciL v. The People ex rel. [Sept. T.. 

Syllabus. 

officers under color of office. The laws under which they 
acted, and the assessments and levy were made, were constitu- 
tional, and the acts of the officers under the laws were consti- 
tutional, and although there may have been some irregulari- 
ties in making the assessments, still they form no ground for 
enjoining the collection of these taxes. 

^Ye can see no merit in the application, or grounds for en- 
joining the tax, and hence the relief sought should have been 
denied. 

The decrees of the court below must be reversed and the 

bills dismissed. 

Decrees reversed. 



Tyler McWhorter et al. 

V. 

The People ex rel. The Chicago and Rock River 
Railroad Company. 

1. MuNicrrAL subscription — law authorizing subscription to capital 
«tock of a railroad company does not authorize a vote to subscribe to a diet- 
tion of the road. Where the charter of a railroad compauy authorized 
certain muuicipulities to subscribe to the capital stock of the company, 
and a vote was taken to subscribe to a certain division of the road : Ueld, 
that the vote was unauthorized, and the company could not compel the 
municipality thus voting to make the subscription to its capital stock. 

2. And when^ such company Avas authorized to receive such subscrip- 
tions, on such terms and in such amounts as it might deem best in accord- 
ance with its by-laws, and tiie company, in its by-laws, divided the road 
into divisions, and a subscription was voted by a township to the first 
division of the road: Held, tliat the charter of the compauy must govern, 
and as that only authorized the tax-payers to vote a subscription to the 
whole capital stock of the company, the vote was void, aud conferred no 
right on the company to compel the subscription. 



1872.J McWhorter et al. v. The People ex rel. 291 

Opinion of the Court. 

3. Same — conditions in the notice of the election must be complied with. 
The cliarter of a railroad company authorized certain counties, towns, etc., 
to subscribe to its capital stock, upon an election being had upon the 
question, and a majority of the voters voting at such election voting in 
favor of the proposition. Under this, an election was called in a township 
to vote upon a proposition to subscribe $50,000, but the proposition con- 
tained a condition that the bonds to be issued in payment of the subscrip- 
tion should be such as to entitle them to registration, under the act of 
1869. Under the latter act a majority vote of the legal voters living in the 
township was necessary to entitle the bonds to registration. The election 
had resulted in a majority of the votes cast in favor of the proposition, but 
not in a majority of the legal votes of the township: Held, that the con- 
dition precedent in the notice of the election not having been complied 
with, the election was null and void. 

Appeal, from the Circuit Court of Eock Island county ; the 
Hon. George W. Pleasants, Judge, presiding. 

Messrs. Beckwith, Ayer & Kales, for the appellants. 

Messrs. McCagg, Fuller & Culver, for the appellees. 

Mr. Justice Breese delivered the opinion of the Court: 

This was an application for a mandamus, by The People, on 
the relation of the Chicago and Rock River Railroad Cona- 
iranv, made to the circuit court of Whiteside county, and 
taken, bv change of venue, to the Rock Island circuit court, 
tlie object of which was to compel the proper officers of the 
^own of Montmorency, in Whiteside county, to subscribe fifty 
thousand dollars to the capital stock of that company, and 
issue its bonds therefor in payment of such subscription. 

The petition sets forth the act of the general assembly of 
this State incorporating this company, and the route of the 
road, and also sections six, ten and eleven of the charter, 
upon the true interpretation of which this controversy mainly 
depends. 

The sixth section authorizes the directors of the company 
to receive subscriptions to their capital stock from any cor- 
poration, county, city or town, on such terms and in such 



292 McWhorter et ah v. The People ex rel. [Sept. T., 

Opinion of the Court. 

amounts as they may deem for the interest of the comjjany, 
in accordance with the by-laws of the company. 

Section ten authorized any incorporated city, town, or any 
township organized under the township organization laws of 
this State, along or near the route of the road, to subscribe 
to its capital stock. 

Section eleven provides for holding the election to deter- 
mine the question of subscription, and provides, " if it shall 
appear that the majority of all the legal voters of such city, 
town or township, voting at such election, have voted for 
subscription, it shall be the duty of the president of the board 
of trustees, or other executive officers of such town, and of" 
the supervisors in townships, to subscribe to the capital stock 
of said railroad company, in the name of said city, town or 
township, the amount so voted to be sub.scribed. and to re- 
ceive from said company the proper certificate therefor." The 
president, or other executive officer, was authorized and re- 
quired to issue bonds in the name of the corporation voting 
the subscription, bearing ten per cent per annum interest, 
payable annually, and payable within twenty years. 

It is alleged the railroad company was duly organized in 
vlay, 1869, and at an election called and held in the township 
cf Montmorency, on the 28th day of August, of that year, a 
majority of the legal voters of that town.ship voting at such 
election voted to subscribe fifty thousand dollars to the capital 
stock of the company. 

It is furtiier alleged tluit, after the result was declared, 
the railroad company, on the r2th day of February, 1872, 
nuide a demand on the township officers to subscribe to the 
capital stock, and issue bonds in payment of their subscrip- 
tion, which they refused to do, on various pretexts. 

It appears that parties friendly to this enterprise, and con- 
nected witli the railroad company, prepared, and circulated 
among the tax-payers a petition, which was duly signed by 
eleven tax-payers and legal voters of the town, and presented 
to the town clerk, which bears upon its face strong indicationa 



1872.] McWhorter d al v. The People eoi rd. 293 

Opinion of the Court. 

of careful preparation, and which, being necessary to a full 
understanding of the case, is here copied, leaving out mere 
formal parts : 

"The undersigned, legal voters and tax-payers in said town, 
do hereby petition you that a special meeting of the legal 
voters of said town be called, to be holden at the usual place 
of voting in said town, at which the question of said town 
making a subscription to the capital stock of the Chicago and 
Kock River Railroad Company shall be submitted to them, 
and that such call be made in the within words and figures/' 

These "words and figures" are as follows: 

"special town meeting. 

^ "Whereas, By section ten (10) of an act to incorporate 
the Chicago and Rock River Railroad Company, in force 
March 24, 1869, any county, incorporated city or town, or any 
township organized under the township organization laws of 
the State, along or near the route of said railroad, is author- 
ized to subscribe to the capital stock of said company ; 

" And avhereas. Said railroad company has constituted 
that portion of their road extending from Rock Falls to Am- 
boy the first division of said road, and created a separate and 
distinct stock for the construction of said first division; 

"And whereas, A petition has been presented to me, 
signed by ten citizens, who are legal voters and tax-payers in 
the said township of Montmorency, asking that a special elec- 
tion shall be called in said town, at which the question of said 
town subscribing to the capital stock of said railroad com- 
pany, to the amount of fifty thousand dollars, shall be sub- 
mitted to the legal voters of said town ; the bonds to be 
issued in payment of said stock to be in such form as to en- 
title the same to registration, under the act of the legislature 
in that behalf, in force 16th April, 1869; said bonds to be 
issued to said company only when said road is in readiness 
for operating into or near said township ; 



294 McWhorter d al. v. The Peoplp: ex rcl. [Sept. T., 
Opinion of the Court 

" Kolo, therefore, The legal voters of said town are hereby 
notified to meet at the school house in district number two 
(2), on the 28th day of August A. D. 1869, for the purpose 
of voting for or against said town subscribing the sum of 
fifty thousand dollars to the capital stock of the first division 
of the Chicago and Rock River Railroad Company. At said 
election, the form of voting shall be, ' for subscription/ or 
'against subscription.'" 

At the time and place appointed in this notice an election 
was held, the polls being opened at 11 o'clock in the morn- 
ing. At 12 M. there was an adjournment of one hour, and a 
closing at 6 in the afternoon. The votes being counted, as 
appears by the returns made bv tlie moderator and clerk, 
seventy-seven votes were found for subscription, and thirty- 
four against. It is alleged in the petition that, from this can- 
vass, it appeared that a majority of the legal voters voting at 
the election had votfd for subscription. 

It is further alleged in the petition that a special town meet- 
ing of the voters of this town was called by the clerk, on the 
petition of twelve freeholders, and was held on the 7th day 
of May, 1870, to reconsider the former vote; that tlie }iolls 
were kept open from 10 o'clock in the morning to 5 o'clock 
in the afternoon; that sixtv votes were cast, of which fitty- 
nine were in favor of, and one vote against, reconsideration. 

The return sets forth that, prior to making the request and 
call I'or the lirst special election to vote on the question of 
subscription, the relator liad falsely, and with a view to in- 
ilu('U(!ing the result, given out that it had created a separate 
and distinct stock to represent the first division of the road. 
2. Tiiat it was falsely given out to tiie voters that the subscrip- 
tion, if made, should be paid for in the bonds of tlie town, to 
be issued in such nuunur ancl Ibrm as to entitle them to reg- 
istration, as provideii by law; and that the town .should have 
tlie benefit thereof; and that tlie [)r(iposed election in that 



1872.] McWhortee et al. v. The People ex rel. 295 

Opinion of the Court. 

behalf should be in pursuance of the act of the general assem- 
bly, approved April 16, 1869, referred to in the call for the 
election; and that the vote should be such as to entitle the 
town to the benefits of that act. 3. That, in fact, relator had 
no authority to create a separate or independent stock for 
construction of each of its divisions; nor had it created a 
separate and distinct stock for the construction of its first 
division, and that the road was not yet completed. 4. That 
a majority of the voters living in the town at the time of such 
election did not vote in favor of the subscription. 

In was also alleged, in the return, that the petition and cai 
for the election were prepared by the relator, and that rela- 
tor procured the signatures thereto. 

A general demurrer was interposed to this return, which 
the court sustained, and awarded a peremptory writ of man- 
damus. 

To reverse this judgment, the town authorities appeal, and 
make several points as ground of reversal. 

The first point is, that the question of subscription to the 
capital stock of this company was not submitted to the voters 
at the election. 

By section ten of the act incorporating this company, quoted 
above, the town was authorized to subscribe to the capital 
stock of the company as a unit, as an entirety, as one thing. 
We look in vain in the act for authority to divide the road 
or to authorize a vote for subscription to the capital stock of 
any one division of it. The road was projected from Kock 
River to Chicago, passing through a very productive country, 
capable of furnishing to the road a vast amount of profitable 
business. Stock in such a road, as one entire work, as a leading 
line of rail communication, promised value to the subscribers. 
It was in such a road the town of Montmorency was author- 
ized to take stock to the amount of fifty thousand dollars, the 
whole capital of the road being one million of dollars. 

It is true, the sixth section of their charter, cited above, author- 
izes the directors of the company to receive subscriptions 



296 McWhoeter et al. v. The People ex rel. [Sept. T., 

Opinion of the Court. 

to their capital stock, from any corporation, county, etc., 
on .such terms and in such amounts as they may deem for the 
interest of the company, in accordance with its by-laws. 

It is assumed by appellees that the by-law of the company 
authorized this division of the road, and that it was referred 
to in the notice given by the clerk calling the election. 

It is stated in this notice that the company has constituted 
that portion of the road extending from Rock Falls to Amboy 
the first division of the road, and created a separate and dis- 
tinct .stock for the construction of said first division. How, 
it may be asked, did the clerk know this, and by what au- 
thority did he publish it to the voters? He states them as 
facts of which his position could not give him knowledge, and 
it may be safe to say he had no such knowledge. The paper 
was prepared, undoubtedly, by soiue agent of the company, to 
operate upon the voters, it being designed as a sort of guar- 
antee that the money they voted should be expended on the 
road in their town. 

But does the by-law compel the company to maintain this 
division ? Are tliese by-laws like the laws of the Medes and 
Persians — irrepealable? Suppose the three divisions shall 
not be completed, where, then, will be the merger, as pro- 
vided in the by-law? Under this by-law, what power could 
compel this subscription to the making the first division? 
The promise of the company is of no binding force, for at 
tlieir next meeting they can repeal the by-law in which it is 
contained. 

Conceding the power to the company to prescribe the terms 
on wliich subscriptions shall be made, it is incumbent on them 
tliat the charter is observed. By the ciiarter, the tax-payers 
of this town could only vote a subscription to the capital 
stock of the company. This they were not called upon to 
do, and iiave not done. 

This point, we think, is well taken. It is true, this court 
has unifbrnily held, in the ca.'^es cited by appellees, that where 



1872.] McWhorter et al. v. The People ex reJ. 297 

Opinion of the Court. 

subscriptions have been voted in good faith to aid in the con- 
struction of railroads, they will be enforced, if they have 
been made in pursuance of law, but not otherwise. 

The second point made by appellants we pass by as un- 
necessary to be noticed. 

The third and most important point, that in the proposition 
to subscribe which was submitted to the people, there was 
coupled a condition that the bonds to be issued should be 
such as to entitle them to registration under the provisions 
of the act of April 16, 1869. 

Section seven of that act declares that none of its benefits, 
advantages or provisions shall apply to any debt unless the 
subscription or donation creating it was first submitted to an 
election of the legal voters of the town, under the 2:)rovisions 
of the laws of this State, and a majority of the legal voters 
living in such town were in favor of such aid, subscription or 
donation ; and any town shall have the right, upon making 
any subscription or donation to any railroad company, to pre- 
scribe the conditions upon which such bonds, subscriptions or 
donations, shall be made; and such bonds, etc., shall not be 
valid until such conditions precedent shall have been com- 
plied with. 

This "condition precedent" prescribed in the notice not 
being complied with, there is no alternative but to declare 
the election null and void. 

It was not bonds not entitled to registration the people 
voted, but it was those so entitled; and the proposition not 
having received the sanction of a majority of the voters living 
in the town at the time of the election, the proposition was, 
consequently, lost. Duvnovan v. Green, 57 111. 63. 

It was of immense importance to the tax-payers of this 
town that their bonds should be such as to entitle them to 
registration. The county clerk, or other proper officer, upon 
issuing them, was required to register them in a book to be 
kept for that purpose in his office, showing the date, amount, 
number, maturity and rate of interest, and to what railroad 



298 Steel v. Dunxe. [Sept. T.^ 

Syllabus. 

tliey were subscribed; and this for the protection of the tax- 
payers. The holders of such bonds, in order to receive the 
benefits of the act, were required to register them at the 
office of the auditor of public accounts, which fact of regis- 
tration he was required to certify upon each bond, under his 
seal of office. 

When registered with the auditor, a certain amount of the 
State revenue, as specified in the act, was appropriated to the 
payment of the interest on the bonds for the period of tei> 
years, tlius relieving the tax-payers from that burden. 

Much as we desire, in due regard to the law, to advance 
enterprises of this character, and to hold municipalities and 
other corporations to all their obligations, we are compelled 
to say, in this case, that appellees have shown no legal right 
to the writ they demand, and that there is no legal obliga- 
tion on the town of ^Montmorency to make the subscription 
claimed and issue its bonds. 

The judgment of the circuit court is reversed. 

Judgment reversed. 



James Steel 

V. 

James Dunne. 

1. CoiiPORATiON — individual liability a» stockholder — constniction. In 
order to fix a liability upon one for the debts of a private corporation 
organized under the general law which makes stockholders individually 
liable to tJie creditors of the company to an amount equal to the stock 
luld by them, etc., it must be made jjlainly to appear that he was a stock- 
holder, and within the purview of the law. The meaning of the statute 
can not be enlarged so as to include cases not expressly within its pro- 
TisioDS. 



1872.] Steel v. Dunne. 299- 

Opinion of the Court. 

3. The mere fact that the defendant was a director in such a company- 
is not sufficient to make him liable individually within the meaning of 
the statute. 

3. So, where the defendant was a director in the Piute Mining Com 
pany, and it appeared that company had never issued any certificates of 
stock, and it was not shown that he ever subscribed for stock, and it ap- 
peared that he was a stockholder in the Piute Silver Mining Company, 
subsequently organized with a different directory: Held, that he was not 
liable individually in a suit by a creditor of the first named corporation. 

Appeal from the Circuit Court of Cook county; the Hon. 
Henry Booth, Judge, presiding. 

Messrs. Moran & English, for the appellant. 

Mr. C. M. Hardy, for the appellee. 

Mr. Justice Scott delivered the opinion of the Court : 

The appellee was formerly secretary of the " Piute Mining 
Company of Chicago," an incorporated company organized 
under the general laws of the State. At the March term, 1871,. 
of the circuit court of Cook county he obtained a judgment 
against that company. On this judgment execution was reg- 
ularly issued, and was, by the sheriff, returned- nulla bona 
before this action was commenced. It is alleged that appel- 
lant was a stockholder in that company, and this action 
was commenced against him to recover the amount of the 
judgment obtained by appellee against the company. 

The statute under which the company was organized pro- 
vides: that all stockholders of every such company shall be 
severally individually liable to the creditors of the company 
to the amount equal to the amount of stock held by them 
respectively, for all debts and contracts made by the com- 
pany prior to the time Avhen the whole capital stock shall 
have been paid in, and a certificate thereof made and filed as 
therein required. Gross' Statutes, chap. 25,div. 14. 

The defense sought to be interposed is that appellant 
was not, at the date the debt was contracted for which appellee- 



300 Steel v. Dunne. [Sept. T., 

Opinion of the Court. 

obtained judgment, and never was a stockholder in the " Piute 
Mining Company." 

It seems to us that the evidence fully sustains the defense. 
It does not appear that any certificates of stock were ever 
issued to any one by that company, or that appellant really 
owned any stock. He had not previously subscribed for any 
stock. The company was only in existence for a period of 
about three months. 

The company was about to commence business and issue 
certificates of stock, and for that purpose caused scrip to be 
printed and a seal to be engraved. When the work was 
finished it was found that the seal was engraved " The Piute 
Silver Mining Company of Chicago." The same error, per- 
haps, occurred in the printing. It was suggested by ap- 
pellee that the cheapest way to remedy the difficulty would 
be to file new articles of association, and organize the com- 
pany by the name "The Piute Silver Mining Company," 
which was accordingly done. The new company was organ- 
ized with five directors; the old coni]>any liad seven. Appel- 
lant was named as a director in both companies. 

The ''Piute Mining Com})anv" seems to have been then 
abandoned. No stock had been previously issued, and none 
afterwards. 

Tlie new organization having a different and less directory 
was essentially a new company. It had a new name and a 
jiew directory. In the latter company it is admitted that 
appellant was a stockholder, but ajipellee never rendered 
any services for the "Piute Silver Mining Company," and 
had no judgment against it. 

There being no satisfactory evidence in the record that 
appellant was ever a stockholder in the " Piute Mining Com- 
pany," against which appellee had a judgment, there could 
be no re(;overy. What remedy ap[)ellee may have had 
against the directors of the ahaiuioniHl eoinpany who employed 
him as their secretary, it is not the })rovinee of this coui't to 



1872.] Aylesworth v. The People. 301 

Syllabus. 

inquire. It is sufficient that under the evidence in this record 
there can be no recovery as against appellant. 

The mere fact that he was a director in the company is not 
sufficient to make him liable within the meaning of the stat- 
ute. It must appear that he was a stockholder before any 
individual liability can attach. The remedy is purely statu- 
tory, and the evidence must show that he is plainly within 
its purview before he can be made personally liable. The 
meaning of the statute can not be enlarged so as to include 
cases not expressly within its provisions. 

The judgment is reversed and the cause remanded. 

Judoment reversed. 



Homer E. Aylesworth 

V. 

The People of the State of Illinois. 

1. Indictment — record, must show that it was returned into court, and a 
plea, to sustain a conviction. Where the record fails to show that the in- 
dictment was ever returned into court by any grand jury, or that the 
defendant was ever arraigned upon, or pleaded to it, a conviction can not 
be sustained ; without a plea there is nothing to try. 

Writ of error to the Circuit Court of Warren county; 
the Hon. Arthur A. Smith, Judge, presiding. 

Messrs. Stewart & Phelps, for the plaintiff in error. 

Mr. Washington Bushnell, Attorney General, and Mr. 
Alfred Rowe, for the People 



.302 Hall v. Jaevis et al. [Sept. T., 

Syllabus. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was an indictment, in the Warren circuit court, for 
selling liquor without a license, and verdict of guilty, and 
fine imposed. The defendant brings the record to this court 
by writ of error. I 

The record purports to contain an indictment against 
plaintiff in error, but it wholly fails to show that such in- 
dictment was ever presented in court by any grand jury, or 
that plaintiff in error was ever arraigned upon or pleaded to 
it. The record must show that the indictment was returned 
into open court. Gardner y. The People, 20 111.430; Sattler 
V. The People, 59 ib. 68. 

The record should also show that the plea of not guilty 
was entered. Without it there is nothing for the jury to try. 
Johnson et al. v. I'he People, 22 111. 314. 

The judgment of the court below must be reversed and the 
cause remanded. 

Judgment reversed. 



Henky L. Hall 

V. 

William B. Jakvis ct al. 

1. Rescisbion op contract — not for fraudulent representations vnle^i 
relied on. Wlierc the complainant sought to rescind a contract for the 
exchange of lands which had been executed on his part, on the ground 
that the defendant had falsely and fraudulently represented that he had 
a perfect title to the lands he exchanged, and it appeared that tlie com- 
plainant took a bond from the defendant, secured by mortgage on the land 



1872.] Hall^. jARVise^ aZ. 303 

Opinion of the Court. 

conveyed by the complainant, conditioned tliat tlie defendant sliould fur- 
nish a complete abstract within sixty days, showing a perfect title to the 
land he had given in exchange : Held, where the bill was filed before the 
expiration of the sixty da3's, in the absence of proof that complainant 
relied on the representations, that the fair inference was that he relied 
upon the bond and mortgage, and not upon the representations, and that 
he was not entitled to the relief sought, as there was no default at the time 
in failing to perform the conditions of the bond. 

2. Same — burden of proof. Where a party seeks in equity to rescind 
his contract on the ground that it was induced by fraudulent representa- 
tions, the burden of proof is upon him to establish the fraud by showing 
the representations and their falsity. 

3. Government a^AisiT^patent not necessary to. The United States, or 
a State, may transfer its lands by a special act of legislation without the 
issue of a patent. So, where, by special act of Congress, land was granted 
to the State of Iowa, and the Governor selected the same under the grant, 
it was held that a good title might be acquired without the issue of a 
patent, unless the act required one to be issued preliminary to the vesting 
of the title. 

Appeal from the Circuit Court of La Salle county; the Hon. 
Edwin S. Lei.and, Judge, presiding. 

Messrs. Blanchard, Silver & Corwin, for the appellant 

Mr. T. Lyle Dickey, for the appellees. 

Mr. Justice Thornton delivered the opinion of the Court: 

This bill was framed upon the theory that the defend- 
ants, together with three other persons, combined to defraud 
the complainant out of his land. 

The bill alleges that Rensky proposed to purchase from 
the complainant one hundred and sixty acres of land in 
La Salle county, valued at $3200, and give in exchange 
therefor a section of land in Iowa, valued at S25UO, and two 
acres near Waukegan, Illinois, Avith some incumbrances upon 
the latter, and to pay, in money, $345 in ninety days. Ren- 
sky also agreed to execute a bond for $2500, to be void upon 
condition that he would, in sixty days, furnish a complete 
abstract showing title in him to the land in Iowa ; and also 



304 Hall v. Jauvis d al. [Sept. T., 



Opinion of the Court. 



a mortgage to secure the performance of the condition of the 
bond and the payment of the money. 

The bargain was consummated by the execution and de- 
livery of tlie papers agreed upon, on the 22d of December, 
1869^ 

The bill further alleges that Rensky, to induce the trade, 
falsely and fraudulently represented to complainant that he 
had a perfect title to the land in Iowa ; that complainant 
relied upon such representations; and that, in fact, llensky 
had no title whatever to the land. 

As the case hinges upon a charge of fraud, it is unnecessary 
to detail the facts further than they bear upon this question. 

The complainant was a witness, but in his testimony he 
did not state that he placed any reliance upon the parol 
declarations of Rensky as to the title. On the contrary, when 
he took a bond, secured by a mortgage on the land in La Salle 
county, making it obligatory upon Rensky to furnish a per- 
fect abstract of title in sixty days, the fair inference is that 
he relied upon the bond and mortgage, and not upon the 
representations. 

The bill was filed on the 25th of January, 1870, when the 
time allowed by the bond had only about half expired. There 
was then no default on the part of Rensky, and the com- 
plainant had no right to claim a rescission of the contract 
until the expiration of the sixty days. 

The l)urden of proof of the fraud charged rested upon the 
complainant, and he has failed to establish tiuit the repre- 
sentations alleged to have been made were false. 

The only evidence as to the want of title in Rensky, was 
the deposition of the Register of the United States Land 
Office at Sioux City, Iowa, in which he stated that the land 
in question had been granted to the State of Iowa by act of 
Congress, and had been selected by the Governor of the State 
under the grant, but that no patent had been issued. 

The United States, or a State, may transfer the land vested 
in them by a special act of legislation. If, as we infer from 



1872.] LuBLiNER V. Yeomans. 305 

Syllabus. 

the deposition of the Register, there was such special legisla- 
tion as to the land in controversy, and the Governor selected 
the land by virtue of the grant to the State of Iowa, then a 
good title might be acquired without the issue of a patent,, 
unless the act required that one should be issued preliminary 
to the vesting of the title. 

The falsity of the representations has not been sufficiently 
established to entitle the complainant to the relief sought. 

The decree of the court is affirmed; except, as there is 
some suspicion of fraud, and the present bill was filed pre- 
maturely, it is ordered that the bill be dismissed without 
prejudice. 

Decree affirmed. 



Joseph Lubliner 

V. 

William L. Yeomans. 

Chancery — appointment of special master. Where the circuit court, on 
the hearing of a petition for a mechanic's lien, appointed a special master 
to execute the decree : Held, that it would be presumed that such appoint- 
ment was properly made, the record showing nothing to the contrary. 

Appeal from the Circuit Court of Whiteside county; the 
Hon. William W. Heaton, Judge, presiding. 

Mr. J. E. McPherran, for the appellant. 

Messrs. Dinsmoor & Stager, for the appellee. 
20— 65th III. 



306 Spellmax et al. v. Mathewsox et al. [Sept. T,, 

Syllabus. 

Mr. Justice Sheldon delivered the opinion of the Court 

The main question arising on this record is one of fact, 
involving a matter of account in a mechanic's lien proceed- 
ing, where there are items of account on both sides and the 
testimony is conflicting. 

The judge who heard the cause saw the witnesses in the 
giving of their testimony, and had superior means to our- 
selves of judging of their credibility. From an examination 
of the testimony, we do not find the decree of the court to be 
so manifestly against the weight of the evidence as to require 
that it should be disturbed. 

It is objected tliat the court appointed a special master in 

chancery to execute the decree. It will be presumed such 

appointment was properly made, the record showing nothing 

to the contrary. Farnsworth v. Strasler, 12 111. 482. 

The decree is affirmed. 

Decree affii-med. 



Martin F. Spellman et al. 

V. 

A. Julius Mathewson, Guardian, et al. 

1. Gdakdtan's mle of lands — notice of application. The notice by a 
puardlan of the presentutioii of his petition for an order to sell lands of 
Ilia wards was as follows, to wit: " Notice is hereby jjiveu that a petition 
to sell the real estate belonging to the minor heirs of Martin Spellman, 
deceased, will be presented to the circuit court of Will eonnfy, Illinois, 
nt the next term thereof, to be holden at the court house in Joliet, in said 
Will county, on the third Monday in December next, when and where all 
l)er8on3 interested may appear and show cause, if any they have, why such 
petition should not be granted. Lockport, Oct. 27, 1853." And it was 



1872.] Spellman et al. v. Mathewson et al. 307 

Statement of the case. 

signed, " A. J. Mathewson, guardian : " Held, that the notice was suffi- 
cient, and that it was not necessary to have stated the special reasons why 
the order of sale should be aslied. 

2. Same — certificate of publication. Where the certificate of the publica- 
tion of the notice of a guardian's application for an order to sell lands was 
in due form, except it did not state that the newspaper was published in 
the county : Held, on error to reverse the decree, that as the court below 
could receive other evidence of that fact, it would be presumed that it 
did so. 



Writ of error to the Circuit Court of Will county. 

This was an application, by A. Julius Mathewson, one of 
the defendants in error, as guardian of the plaintiffs in error 
and others, for leave to sell certain real estate of his wards. 
The following is a copy of the notice of the application, and 
of the certificate of its publication : 

''Notice is hereby given that a petition to sell the real 
estate belonging to the minor heirs of Martin Spellman, 
deceased, will be presented to the circuit court of Will county, 
Illinois, at the next term thereof, to be holden at the court 
house in Joliet, in said Will county, on the third Monday in 
December next, when and where all persons interested may 
appear and show cause^ if any they have, why such petition 
should not be granted. 

"A. J. Mathewson, Guardian. 
'LocKPORT, Oct. 27, 1853." 

" I hereby certify that the annexed notice was published in 
the Lockport Telegraph for eight successive weeks; that the 
date of the first paper in which the same was published was 
the 29th day of October, A. D. 1853, and that the date of the 
last paper in which it was published was the 17th day of De- 
cember, A. D. 1853. 

"Chas. D. Holcomb, Publisher." 

The petition showed that the guardian had already expended 
large sums of money for the education, nurture and support 



308 Spellman et al. v. Mathewson et al. [Sept. T., 

Opinion of the Court. 

of the wards; that they had no personal property, of any de- 
scription, which could be appropriated to their use and benefit, 
and that considerable large sums of money would necessarily 
have to be expended upon such wards for their nurture, edu- ; 
cation and support in the future, and that it was necessary, | 
for that purpose, that a part of their real estate be sold. The 
petition also states the death of the wards' father, gave a 
description of their real estate, the names of the wards and , 
the fact of guardianship. 

Mr. Homer Cook, for the plaintiffs in error. 

Mr. Melville W. Fuller, for the defendants in error. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

We see no ground for reversing the decree of sale contained 
in this record. The objections taken to the notice and the 
certificate of its publication are insufficient. The former 
showed that a petition by guardian to sell the real estate of il 
his wards would be presented at the next term of the circuit ■ 
court of Will county, and stated the time when said term 
would be held. It was not necessary that it 'should also state 
the special reasons why the order of sale would be asked. I' 
The certificate of publication, it is true, does not show that 
the Lockport Telegraph was published in Will county, but 
the court could receive other evidence of that fact, and we 
must presume it did so, as was held in Fierce v. Carkton, 12 
111. 364, and subsequent cases. 

The petition was sufficient, and the master's report sustained 
its allegations 

Decree affirmed. 



1872.] Safety Deposit Life Ins. Co. r. Smith. 309 

Opinion of the Court. 



The Safety Deposit Life Insurance Company 

V 

Samuel C. Smith. 

1. Corporation — UabilUy for service performed before organization. 
Where the plaintiff was employed by one of the corporators named in 
the charter of a corporation, to act as a book keeper, and in that capacity 
rendered services before the organization of the company, and when the 
organization was formed neither the plaintiff nor any one else informed 
the stockholders of the services he had performed, or that he expected to 
claim payment therefor, and the evidence failed to show that the company 
appropriated his labor or its avails to their use, audited his account, or 
ever agreed to pay him : Held, that the facts showed no ground of re- 
covery. 

Appeal from the Superior Court of Cook county ; the Hon. 
William A. Porter, Judge, presiding. 

Messrs. McCagg, Fuller & Culver, for the appellant. 

Mr. Justice Walker delivered the opinion of the Court : 

Appellee brought suit in the court below, and against ap- 
pellants, and recovered for services rendered by him at the 
request of one of the corporators, before the company was 
organized or did any business. It seems that the corporators 
named in the charter engaged in obtaining subscription 
for stock, preparatory to the organization of the company, 
and Brewster, who was one of them, about the middle of 
January, 1870, employed appellee to act as book keeper, and 
he continued to so act until the company was organized, 
about the last of March or first of April of that year. Appel- 
lee continued in the employment of the company after its 
organization for about one year. 

The evidence shows that when the organization was formed 
appellee nor any one else informed the stockholders of the 
services he had rendered, or that he expected to look to or 



310 Thompson V. HoAGLAND e^ a/. [Sept.T., 

Syllabus. 

claim payment of tlie company. Nor is there any evidence 
that the company appropriated his labor or its avails to their 
use, audited his account, or ever agreed to pay him. 

The questions arising on this record were presented and 
considered in the case of the Rockford, JRock Island & St. Louis 
R. JR. Co. v.Sage, post. p. 328. The facts in the two cases are 
substantially the same. And it m as held in that case that 
they formed no ground of recovery. That case controls this, 
and the judgment of the court below is reversed. 

Judgment reversed. 



William Thompson 

V. 

George Hoagland et al. 

1. Variance — icniver of, in cliancery proceeding. Where a mortgage 
contained a copy of the note it was given to secure, except the words 
"value received," which followed the words "from date," but on the hear- 
ing of a bill to foreclose the same, the note was objected to, but not on 
account of the variance: Held, that the objection came too late on appeal, 
as, if it had been made in tlie court below, it could have been obviated by 
an ameiulnicnt of the bill. 

2. PuoMissoKV NOTK — construction in respect to interest. Where a prom- 
issory note was given in tlie following form: 

" $374.79. Middleport, Sept. 8, 1858. 

One year after date I promise to pay Wm. Thompson or order $374.79, 
at ten per centum from date, value received. 

George Hoagland." 
Held, that the words "at ten per centum from date" made the no*e an in 
terest bearing note at the rate of ten \wr cent jicr annum from its date 
8. Pjiactioe in sui'REME COURT — xclicn the cause irill be remanded on 
reversal. Where a decree for tlie foreclosure of a mortgage was reversed, 
and the interposition of a master in chancery was necessary to compute the 



1872.] Thompson v. Hoa gland et al. 311 

Opinion of the Court. 

interest due, which was not allowed b}'' the court below, this court de- 
clined to enter the decree on reversal which the circuit court ought to 
have rendered, but remanded the cause with special directions. 

4. Promissoky note — possession evidence of ownership. Where it was 
contended that the payee of a note had assigned the same so as to let in 
proof of payment to the assignee, it was held that possession of the note 
by payee, who was seeking to enforce the payment, was strong evidence 
to show it was still his property. 

Appeal from the Circuit Court of Iroquois county; the 
Hon. Charles H. Wood, Judge, presiding. 

Messrs. Roff, Doyle & McCullough, for the appellant. 

Mr. Geo. B. JoinePv, for the appellees. 

Mr. Justice Beeese delivered the opinion of the Court : 

This was a bill in chancery, in the Iroquois circuit court, to 
foreclose a mortgage, to which the mortgagor, George Hoag- 
land, was made defendant, and George B. Joiner as a subse- 
quent purchaser. 

After answering the bill, admitting the execution of the 
note and mortgage, the defendants set up payment of the note 
to one Levi Lasley, to whom they allege it had been assigned. 
Joiner also filed a cross bill, setting up the same facts as stated 
in his answer, and prays for a cancellation of the mortgage 
as a cloud upon his title, he having purchased the land under 
the belief that Hoagland had paid the note to Lasley. 

There is no sufficient proof of any assignment of the note 
by the payee to Lasley, and the fact that complainant had 
the note in his possession, and produced it on the hearing, is 
strong evidence to show it was still his property. 

The testimony of West, by whom payment to Lasley was 
sought to be established, amounts to but little, and, at best, 
is mere hearsay. 

The principal error relied on by the complainant, who 
brings the record here, is that the court refused to allow in- 
terest on the note. 



312 Thompson v. Ho ag land et al. [Sept. T., 

Opiuiou of the Court. 
The note as set out in the mortgage was as follows: 

$374.79. Middleport, Sept. 8, 1858. 

One year after date I promise to pay Wm. Thompson or 
order $374.79, at ten per centum from date. 

George Hoagland. 

The note given in evidence on the hearing was the same in 
all respects, with the addition of the words " value received" 
after the word '^date." 

The defendants made a general objection to the admission 
of the mortgage in evidence, and also to the admission 
of the note, not claiming or insisting upon the variance. 
Had that specific objection been pointed out, the court, no 
doubt, would have permitted an amendment of the bill to 
obviate it, as such an amendment could have worked no in- 
jury to the defendants, and would tend to the furtherance of 
justice. We think it is too late, in this court, to make this 
specific objection. 

Did the court err in refusing to allow interest on the note? 

The note is set out in the bill of complaint according to its, 
legal tenor and effect, as understood by the pleader, as a note 
bearing interest at ten per cent from date. The word inter- 
est is not found in the note, yet we can not but consider it, 
and it would be so received in the money market, as a note 
bearing ten per cent interest per annum from its date. That 
would be tlie common judgment of any body of men to whom 
it should be submitted. The words "at ten per centum from 
date," mean sometliing, and what could they mean, or have 
been intended by the parties to mean, but to make the note 
an interest bearing note at the rate of ten per cent per an- 
num. Could the words be made to mean any thing else? 
It is not at all like the case of Griffith v. Furry, 30 HI. 251 
There, the note read as follows: 



1872.] Thompson v. Hoagland et al. 313 

Opinion of the Court. 

. "$456.75. 
One day after date we promise to pay Daniel Furry or 
order four hundred and fifty-six and 1^ dollars for value re- 
ceived, ten per cent." 

This note was subjected to the severe criticism of this court, 
and it was held the words "ten per cent" at the end of the 
note were, in their connection, without any meaning. They 
Avere added after the note was complete in all of its parts, 
and it could not be determined whether they were added as a 
mark of designation, or that the note was given for a tenth 
part of an entire sum, or for ten per cent which had accrued 
upon some other debt, or that ten per cent interest had been 
added into that note for the period it had to run. 

To no part of this criticism is the note in question subject. 
It speaks in plain and intelligible language, that ordinary 
men of business would understand, that it was a note bearing 
interest at ten per cent per annum from date. 

In the case of Hadden v. Innes et al. 24 ib. 381, a note of 
the following terms was before this court, and we did not 
doubt it was an interest bearing note at the rate of ten per 
cent per annum. It is true, no question was made, but we 
did not hesitate to render judgment upon it as for such a note. 
It was as follows : 

"$561. Aurora, June 13, 1857. 

One year after date we promise to pay to the order of 
George M. Hadden five hundred and sixty-one dollars value 
received, with ten per cent after due." 

In Furry's case, supra, there was a patent ambiguity. It 
can not be so alleged of this, or of the one now in question. 

It is insisted by the parties to this record, especially by 
appellees, that this cause should not be remanded, but that this 
court should enter such a judgment as the circuit court should 
have entered. 



314 Gramer r. JoDER. [Sept. T., 

Syllabus. 

As this is a bill to foreclose a mortgage, rendering the in- 
terference of a master in chancery necessary, we will not 
umlertake to enter a decree, but will reverse and remand the 
cause, with directions to the circuit court to calculate inter- 
est at ten per centum per annum from the date of the note to 
the time of the first payment by Joiner to Fletcher, the 
attorney of complainant, then deducting that payment from 
the interest, calculate interest on the balance of principal to 
to the time of the second payment. That payment being of 
fifty dollars, is to be deducted from the principal of the note, 
as appears by the terms of the receipt, and interest calcu- 
lated on the balance of the principal to the time of the final 
decree. In no event is interest to be calculated upon interest. 
The rule established by this court in McFadden v. Fortier, 20 
111. 509, will be observed. The terms of sale on a foreclosure 
rest with the circuit court, under the statute. 

The decree in reversed and the cause remanded, with 
directions to the circuit court to proceed according to thia 
opinion. 

Decree reversed. 



Valentine Gramer 

V. 

Barbara Joder. 

1. Promipbory note — construction of words relating to interest. Wbert 
a promissory note, after the promise to pay a given sum of mouey, con- 
tnined these words: "ai tenpecen, value received:" Held, that the abbrevi- 
ated words "/)« cen" had a meaning which any one would understand, 
and that the words made the note one bearing interest at ten per cent per 
annum from its date. 



1872.] Gramer v. Joder. 315 

Opinion of the Court. 



Appeal from the Circuit Court of Bureau county ; the 
Hon. E, S. Lelaxd, Judge, presiding. 

Mr. S. M. Knox, for the appellant. 

Mr. J. I. Taylor, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court: 

The point in this case is similar to that made in the pre- 
ceding case of Thompson v. Hoagland et al. 
This note reads as follows: 

§400. Arispe, Oct. 8, 1864. 

One year after date I promise to pay to the order of Bar- 
bary Joder, the sum of four hundred dollars at ten pe. cen. 
value received." 

The court below, trying the cause Avithout a jury, held this 
was a note bearing interest at ten per cent from date, and, 
we think, correctly. The words, thougli abbreviated "pe.cen.,'' 
have a meaning which is well understood. They speak a 
language all can understand; and no dealer in such securities 
would hesitate to accept this note as a note bearing ten per 
cent interest per annum from its date. 

It was alleged in the declaration that the abbreviated words 
\vere intended to mean, and did mean, that ten per cent in- 
terest was stipulated. Had the cause been tried by a jury 
th.ey would have been justified in finding that this allegation 
was true. The court, acting as a jury, found it was true, 
and, we think, correctly. Paison x. Stoddard, 6 Gray, 199; 
Connor v. Bouth, 7 Howard (INIiss.) 175. See Keith et al. v. 
Sturgis, 51 111. 142, as to abbreviations. 

There being no error in the record the judgment is affirmed. 

Judgment affirmed. 



316 Tyler et ah v. Daniel et al. [Sept. T., 

Syllabus. 



Harriet A. Tyler et al. 

V. 

Caroline Daniel et al. 

1. llESULTrNG TRUST — Sufficiency of bill for. The heirs at law of a de- 
ceased person exhibited their bill in equity, against the widow and others, 
to establish and enforce a resulting trust in their favor in respect to cer- 
tain land, showing that, after the payment of all claims against the estate, 
there was left in the hands of the widow the sum of over $500, there being 
no administration had, and that a part of this sum was invested in the 
lands sought to be recovered. The bill also charged that the knowledge 
of their interest in the land came to complainants within the year pre- 
ceding the tiling of the bill. The court below dismissed the bill on de- 
murrer on two causes: first, that it showed no equitable grounds of relief, 
and secondly, on the ground of laches in the complainants: Held, that the 
court erred in dismissing the bill, as it showed a case 'prima facie enti- 
tling the complainants to the relief sought, and that the delay in bringing 
suit was not unreasonable. 

2. Where no administration was had of an estate, and the widow re- 
ceived $500 after paying all claims, and invested a portion of that sum in 
lands, on demurrer to a bill by the heirs of the deceased to declare and 
enforce a resulting trust in their favor as to the lands, it was contended 
that, as widow, she was entitled to the sum named, for her specific allow- 
ance under the statute: Held, that if the widow was so entitled, it was a 
matter of defense, to be shown by answer to the bill, as the amount thus 
due her could be made to appear only from evidence. 

3. In tlie same case it was urged, on appeal, that as the widow main- 
tained the children of the deceased, the sum expended by her for eacli 
child would more than equal the amount charged as coming to her hands 
from tlie estate: Held, that as it Avas alleged that the investment was made 
Boon after the death of the husband, when there could be but little due for 
the maintenance of the children, then if tlie land was bought with funds 
belonging to tliem, tlie trust attached, and could not be atleetcd by any 
subsequent claim for supporting them, and the heirs' interest could not bft 
divested except by an order of court: Held, also, that such defense, if 
available, could only be presented by answer to the bill, and not by de 
murrer to the bill. 

4 CnKNC-anY — laches. Where it appears that suit is brought to en- 
force an equitable right within one year sifter a knowledge of the facta 
upon which relief is sought, no lacfies will be attributable to the complain- 
ants, as sueh ilelay is not unreasonable. 



1872.] Tyleu d al v. Daniel et al. 317 

Opinion of the Court. 

Appeal from the Superior Court of Cook county; the Hon. 
Joseph E. Gary, Judge, presiding. 

Mr. IsPvAEL Holmes, for the appellants. 

Mr. Justice Scott delivered the opinion of the Court : 

This bill was to establish and enforce a resulting trust in 
certain lands in favor of appellants, who are heirs at law of 
Aaron Haskins, deceased. 

It is alleged in the bill that, after the payment of all claims 
against the estate, there was left the sum of over $500, which 
was immediately taken possession of by appellee Caroline, 
who was the widow of the decedent, and, without any admin- 
istration, appropriated to her own use. A portion of these 
funds was invested in the lands in controversy, which fact 
is admitted by the demurrer. 

The court sustained a demurrer to the bill, for two causes : 
first, the bill presents no equitable grounds for relief, and 
second, appellants, by their own showing, have been guilty of 
laches. 

It is assumed that the widow was entitled, under the stat- 
ute, as her specific allowance, to retain to her own use the 
sum of money charged in the bill as having been received by 
her from the estate of her husband. This position can hardly 
be maintained. The statute has appropriated no specific sum 
of monev to the widow, and the court can not know, of its 
own knowledge, how much she will be entitled to receive in 
every particular case. She can claim certain articles of per- 
sonal property, and, in case they are wanting in the estate, she 
may receive the value in money, or she may elect to take money 
in lieu of the specific articles allowed by statute. Hence, it 
is obvious the amount that the widow will be entitled to re- 
ceive may vary in almost every case. It will depend very much 
upon the value which the appraisers fix upon the property, 



318 Tyi.kr et al. v. Daniel et al. [Sept. T. 

Opinion of tlie Court. 

in case the widow elects to take its value in money, and some- 
what, in the provision that shall be made for her and the 
family, upon the standing the parties occupy in life. 

If appellee was entitled to hold the money alleged to have 
come to her hands belonging to the estate, in lieu of her 
specific allowance under the statute, it is a matter of defense, 
and must be made by answer. It can only be known from 
evidence what amount she would be entitled to receive in this 
particular case. 

The other point relied on, that the widow followed the 
usual course of nature, and maintained the children Avhen 
minors, and, in doing so, expended for each more than the 
amount claimed to be due, and on that ground she could re- 
tain to her use the funds of the estate, can not be sustained. 

In the first place, it is alleged the funds of the estate were 
invested in the real estate in controversy by appellee soon 
after the death of her husband, when there could be but little 
due for the maintenance of the children, certainly nothing 
like the amount stated in the bill, which, it is charged, came 
to her hands. 

If the funds belonging to appellants had in fact been in- 
vested in the lands, and their rights once attached, their 
interest could not be affected by any subsequent claim of 
appellee for their support, nor divested except by an order of 
court. 

But there is still another substantial objection. It is a mat- 
ter of proof whether appellee provided for the support of 
appellants during their minority, and, if so, what was it 
worth? Tliis fact did not appear on the hearing of the de- 
murrer to the bill ; and if appellee can avail of such a 
defense, it is clearly by way of answer, which must be main- 
tained by the requisite proof 

No laches can be imputcil to appellants. It is charged 
that the knowledge of their interef^ts in the lands came to 
them witliin the year preceding the filing of the bill. This 
fact being admittcil, liiere was no unreasonable delay in the 



1872.] Merricks v. Davis. 319 

Sj'Uabus. 

assertion of their rights. Kane County et al. v. Herrington et al. 
50 111. 232. 

On the hypothesis that the facts stated in the bill are true, 
they constitute d^ prima facie case, at least, which would entitle 
appellants to relief. Seaman etux. v. Cook, 14 111. 501 ; Kane 
County et al. v. Herrington et al. supra; 2 Story Eq. Jur. sec. 
1258. 

The bill was sufficient to require an answer, and it was 
error in the court to sustain the demurrer. 

The decree is reversed and the cause remanded, with leave 
to such of appellees as have not already done so, to answer. 

Decree reversed. 



William A. Merricks 



William Davis, 

1. Evidence — excluding all of pa/rty's evidence on motion. Where a 
plaintiff lias evidence tending to make out his case, it is error for the court 
to exclude it all on the motion of the other party. 

2. On a trial of the right of property, it appeared that the corn in con- 
troversy had been levied on as the property of a tenant of the claimant, and 
that the same had been raised under a contract between the claimant and 
tenant, by which the latter was to deliver the grain, when harvested and 
gathered, to the claimant, in pens and granaries to be provided by the land- 
lord. The claimant testified that none of the corn had been delivered to him 
at his residence when the levy was made, or the amount agreed on, while 
the tenant testified it had been delivered to the claimant on the premises 
be*" re the levy. There were facts and circumstances testified to, showing 
'jat all the delivery was made of the crops, while growing, of which they 
were capable, and as fast as harvested they were set apart to the claimant. 
After evidence was concluded, the court excluded all of the claimant's ev- 
idence: Held, that it should have been submitted to the jury to determine 



320 Merricks v. Davis. [Sept. T., 

Opinion of the Court, 

whether the parties had, by the agreement and acts done under it, com- 
pleted the contract. 

3. Right op property — validity of execution. On the trial of the right 
of property, which has been levied on, the claimant can not be allowed to 
take advantage of the fact that the execution under which the levy was 
made was void. 

AppeaIj from the Circuit Court of Knox county ; the 
Hon. Arthur A. Smith, Judge, presiding. 

Messrs. Craig & Harvey, and Mr. F. S. Murphy, for the 
appellant. 

Messrs. McKenzie & Wilt.iams, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

April 18, 1871, a judgment was rendered in favor of appel- 
lee, against A. C. INIason, D. Mason and B. Lomax, by a police 
magistrate, for $421.76, besides costs, upon which execution 
was issued September 5, 1871, and levied on a quantity of 
corn, being at the time on a farm occupied by Lomax, and as 
his property. 

Appellant, claiming the corn as his property, gave notice to 
the constable, under the statute, for trial of right of property, 
and trial was had before the police magistrate, where tiie find- 
ing was against the claimant, who appealed to the circuit court 
of Knox county. 

On the trial tiiere, claimant introduced a written contract 
between him and Lomax, made May .*>1, 1871, by which the 
latter agreed to cultivate all the crops then planted or sown 
by iiini on the premises occupied by him, describing them ; to 
do all that was necessary for the purpose of securing a good 
yield of grain, and to deliver the same in good order in bush- 
els on the i)rcmises; the corn to be put up in pens, the wheat 
and oats in granaries, the hay to be put in stacks, which it 
was agreed should be the property of appellant, for the doing 
whicli appellant was to furnish Lomax certain utensils and a 



1872.] Merricks v. Davis. 321 

Opinion of the Court. 

team ; in addition, pay him certain prices per bushel for grain, 
and per ton for hay. 

Appellant introduced evidence tending to show that the 
corn in question was raised, under this contract, upon land of 
which Lomax was in possession ; that it was raised by Lomax 
for him; that he was several times upon the ground to see 
about it, and had paid considerable sums of money to or for 
Lomax, by his direction, on account of it; that it was gener- 
ally known in the neighborhood that Lomax was raising the 
crops that season for appellant. 

Appellant, on his direct examination, testified that none of 
the corn had been delivered to him at Abington, where he 
lived, and some four miles distant from the farm where the 
corn had been raised. 

On his cross-examination he said the corn had not been de- 
livered, or amount agreed on, before the levy. But Lomax, 
who was admitted by the court as a witness, testified that the 
corn had been delivered to appellant before the levy. 

When the evidence was concluded, the court, on motion of 
appellee's counsel, excluded all that was given on behalf of 
appellant from the jury. Verdict was given against him, with 
judgment for costs, and he appealed to this court. 

There was evidence tending to make a case for appellant, 
and it was error to exclude it from the jury. 

There were facts and circumstances testified to which tended 
to show that all the delivery was made of the crops, while 
growing, of which they were capable, and as fast as harvested 
they were set apart for appellant according to the contract. 

The mere fact that appellant said, on cross-examination, 
without stating facts, that the corn had not been delivered 
or amount agreed upon before the levy, was not sufficient to 
justify the court in excluding all the evidence from the jury. 
It should have been submitted to the jury to determine 
whether the parties had, by the agreement and the acts done 
under it, completed the contract between them. Holliday v. 
21 — 65th III. 



322 In re William Steele et al. [Sept. T., 

Syllabus. 

Burgess, 34 111. 193; Craig v. Peake, 22 111. 185; Kohl v. 
lAndley, 39 111. 195. 

The point made by appellant's counsel, that the execution 
was void, has been ruled in accordance with their view. Phil- 
lips V. Quick, 63 111. 445, But it is not available in this pro- 
ceeding. Harrison v. Singleton, 2 Scam. 21 ; Dexter v. Parkins, 
22 111. 144. 

For the error in excluding appellant's evidence from the 
jury, the judgment must bj reversed and the cause remanded. 

Judgment reversed. 



//M-e William Steele et al. Guardians, etc. 

1. County court — eqvitable jurisdiction of. The county courts in this 
Stale have equitable jurisdiction in the allowance of claims against estates, 
and in the adjustment of the accounts of guardians, and in such cases may 
adopt the forms of procedure in equity. 

2. GUAKDIANS — treated as trustees of wards. Guardians -were treated at 
common law as trustees, and as such were held responsible for the faith- 
ful discharge of the duties imposed upon them. Our statute has made no 
change in this respect, but has given a summary power to the county court 
to oblige guardians to render an account upon oath touching their guar- 
diaiisliip, instead of compelling a resort to a courtof equity, as at common 
law. 

3. Same — account returned by, not conclusive. The account of moneys 
received on sale of real estate required to be made by the guardian to the 
county court under oath, is not conclusive upon the wards wlien assailed 
by them. The county court has the right to allow or reject the report, may 
require proofs, examine witnesses, and resort to all means necessary to as- 
certain the truth. This is its duly, and its powers in this respect are co- 
extensive with a court of chancery. 

4. Same — nature of citation to account, and procedure. A citation to a 
guardian to account is not a suit at law, but the exercise of a summary 
power, in the nature of a bill in equity, to compel a discovery against the 



1872.J In re William Steele et cd. 323 

Statement of the case. 

guardian. Where the return of the guardian is made to a citation to ac- 
count, the guardian should be allowed the privilege of defense, if his ac- 
count is assailed, and to submit all legitimate proof to establish the same. 

5. Guardian's report — -parol evidence to explain mistake apparent on 
its face. Where there was a probable, if not an evident, mistake in a guar- 
dian's report of the amount of the purchase money of lands sold by him 
under an order of court, it was 7ield, that, where the guardian was sought 
to be charged with the amount thus reported, parol proof was admissible 
of the interest purchased and of the amount of purcliase money received 
by him on the sale. 

6. But in such a case, parol evidence is inadmissible for the purpose of 
showing that the wards had no interest in the lands sold, as the guardian 
was estopped, by his act in selling tlie same as theirs, from disputing sxich 
fact, and also by the finding of the court, which must be regarded as res 
adjudicata. 

7. Guardian's account — right to retain funds to pay debts of deceased 
ancestor. Where letters of guardianship were granted in 1855, during the 
administration of the estate of the ward's ancestor, and letters of admin- 
istration were granted to one of the guardians in 1856, of the same estate, 
and the guardians were cited to make settlement in 1868, it was held, that 
they had no right to retain funds derived from a sale of their ward's land 
to pay claims against their father's estate, as such claims were barred by 
the statute of limitations and by laches. 

8. Witness — competency of party under act of 1867. A guardian, on 
settlement of his accounts, is a competent witness to testify to any facts 
occurring after the death of the father of the wards, and therefore compe- 
tent to explain an error or mistake apparent on the face of his report of 
the sum realized from the sale of the wards' interest in lands. 

9. Interest — in stating guardiaii's account. In stating a guardian's ac- 
count on final settlement, the court should, at the end of each j'ear, add the 
interest to the principal, and thus compound the interest annually until 
the final order. 

Appeal from the Circuit Court of Lake county; the Hon. 
Erastus S. Williams, Judge, presiding. 

This proceeding originated in the county court of Lake 
county, and was taken by appeal to the circuit court, and from 
the order of the latter court the guardians appealed to this 
court. 

Mr. W. S. Searls, for the appellant. 

Messrs. Smith, Upton & Watterman, for the wards. 



324 In re William Steele et al. [Sept. T., 

Opinion of the Court. 

Mr. Justice Thornton delivered the opinion of the Court : 

This was a proceeding to compel guardians to account for 
moneys received by them. 

The rules and principles of equity must, to a certain extent, 
prevail in such an adjudication. Guardians, at common law, 
were treated as trustees, and as such were held responsible for 
the faithful discharge of the duties imposed upon them. The 
aid of courts of chancery has always been invoked for a com- 
pulsion of the execution of the trusts, and the protection of 
the infant. In this respect the statute has made no change, 
but has given a summary power to the county court to oblige 
guardians to render accounts upon oath, touching their guar- 
dianship. 

When the guardians exhibited their account, Avhat was the 
duty and what were the powers of the court? 

The account was under oath, but was not therefore pj-hna 
facie correct. The statute requires that an account of all 
moneys received by any guardian for the sale of real estate 
shall be returned, on oath, to the probate (now county) court, 
R. S. 1845, sec. 11, p. 267. But this return, unless assailed by 
the wards, is not conclusive upon them. The court has the 
right to allow or reject the report, may require proofs, exam- 
ine witnesses, and resort to all means necessary to ascertain 
the truth. This is its duty, and its powers in that regard are 
co-extensive with those of a court of chancery. Bond v. LocJ:- 
u-oor/, 3.3 111. 212. 

In the allowance of claims against estates, the county court 
has equitable jurisdiction, and may adopt the forms of pro- 
ceedings in equity. Dl.rou v. Bucll, 21 111. 203. It may 
likewise possess a similar jurisdiction and adopt the same 
mode of procedure in the adjustment of the accounts of guard- 
ians. 

The citation to account is not a suit at law, but the exercise 
of a summary power conferred by the statute. In Gilbert v. 
Ovptill, 34 111. 112, it was likened to a bill in chancery for 



1872.] In re William Steele et al. 325 

Opinion of tlie Court. 

discovery against the guardian. It is necessary, in the lan- 
guage of the court, '' to sift his conscience," and thus make 
certain of the facts. 

The statute {vide sec. 11 before cited,) makes it compulsory 
upon the guardian to return an account of all moneys received 
for the sales of real estate, to the county court. He has no 
right to await the order of the court for that purpose. If 
commanded, however, he must obey, or be subject to attach- 
ment for contempt. 

AVhen the citation has been issued and served, and a return 
made, and its correctness is assailed by the ward, the guardian 
should be allowed the privilege of defense, and to submit all 
legitimate proof to establish his account. In view of these 
general principles, we will examine the facts of this case. 

The county, as well as the circuit court, charged the guar- 
dians with over ^4000 more than they reported in answer to 
the citation. The serious contest arises in regard to this dif- 
ference. 

The only evidence of the larger amount is a report made 
by the guardians to the circuit court of their action under a 
decree authorizing them to sell the real estate of their wards, 
for their education and support. In 1856 they filed their pe- 
tition, alleging that their wards were seized of an undivided 
one-fourth interest in certain parcels of land Avhich are de- 
scribed. The decree ordering the sale found the same inter- 
est as was stated in the petition, and directed a sale of such 
interest. 

The report of the sale recites the authority to sell the same 
interest, and describes the land by metes and bounds and 
quantity of acres. It then states that each tract sold for $10 
per acre, and the amount of money placed opposite to each 
tract is the product of the number of acres multiplied by 
$10 — the price per acre, with the exception of one tract, 80 
acres, the total value of which, at the same rate per acre, is 
set down at $2400. The price of three tracts is given by 



326 In re William Steele ef al. [Sept. T., 

Opinion of the Court. 

affixing opposite to them §10 per acre, in figures, and then com- 
mas are used to designate the same price for the subsequent 
tracts. 

The reasonable inference, from the entire report, would be 
that, as only one-fourth interest was ordered to be sold, and 
the land sold for so much per acre, the total proceeds would 
be only one-fourth' of the whole number of acres, multiplied 
by ten. 

There is an apparent error as to each tract, and it is mani- 
fest error to state that 80 acres, at §^10 per acre, will produce 
§2400. 

As there is a probable, if not an evident, mistake in the 
report, it should not be held conclusive upon the guardians. 
Upon principles of equity, they should have been permitted 
to correct it by satisfactory proof. For this purpose parol 
proof of the interest purciiased, and the actual amount of 
purchase money received, was admissible. It aj)pear.s, too, 
from the face of the report, that it was made by the attorneys 
of the guardians. For aught that appears, they never saw it 
or knew its contents or exact form, and it would be uncon- 
scionable, luuler the circumstances, to conclude thcjn by it. 

If a report was iair upon tlie lace, without any apparent 
mistake, we do not wish to be understood as holding that 
parol evidence would tlien be admitted to contradict or ex- 
plain it. 

The admission of evidence of the character indicated would 
not all'ect the decree or invalidate the sale. The court had 
jurisdiction of the |)arties, the orik-r to sell and the sale were 
regular, and the conlirmation vested the title in tlie purchaser. 

The only question is, where evident error aj)pears as to the 
amount of money received at the sale, are tlie guardians con- 
cluded by such error? Accident and mistake are ancient 
heads of chancery jurisdiction, and great injustice migiit re- 
sult, in this case, unless the principles of equity are applied, 
the proof heard and iIk' error corrected. 



1872.] In re William Steele et al. 327 

Opinion of the Court. 

Evidence should only be heard, however, to show that the 
purchase money of the real estate, as stated in the report, was 
put down at too large a sum, and not for the purpose of show- 
ing that neither the deceased nor his heirs had any interest in 
the lands. The evidence offered to prove the latter, was prop- 
erly excluded. 

The guardians are estopped from denying the interest set 
out in the proceedings to sell. The petition was their own 
deliberate act, and the finding of the court thereupon has 
been acquiesced in by them for twelve years, and the question 
must be regarded as res adjudicata. Besides, in the inventory 
of the real estate, and in the account rendered by the guar- 
dians, and sworn to, the interest of the heirs is stated to be 
one-fourth in the lands. They should not be allowed to per- 
jure themselves by a subsequent denial of their sworn state- 
ment made with a presumed knowledge of all the facts. 

There was no error in the refusal to allow the claims of the 
guardians against the estate of the deceased. They were all 
barred by the statute of limitations and by laches. Letters 
of administration were granted to one of them in 1856. 
They were appointed guardians in 1855, during a prior ad- 
ministration. The citation was not issued until in 1868. 
This long time, without any attempt at a settlement of the 
estate, or the presentation of claims in any of the modes pro- 
vided by the statute, must be regarded as a bar to all debts, 
and we must presume an adjustment of all rights, except those 
of the infants. 

The alleged error in refusing compensation for the care and 
attention to, and the board and clothing of, the infants, does 
not exist. There was a contrarity of evidence as to the ser- 
vices of the children, and their expenses, and we ought not 
to disturb the finding of the court. 

We have commented upon the propriety of the admissibility 
of parol evidence, in this particular case, to prove the incor- 
rectness of the report of the guardians as to the amount re- 
ceived for the sale of the real estate, not because it was not 



328 R., R. I. & St. L. E. R. Co. v. Sage. [Sept. T., 



Syllabus. 



heard, but, as we infer from the order of the court and the 
argument of counsel, because the court did not give any con- 
sideration to it. 

The guardians testified that the amount paid, or agreed to 
be paid, at the time of the sale, was one-fourth of the amount 
stated in the report. They were uncontradicted, save by the 
report, which, by fair construction, corroborated them. The 
truth of the report was thus overthrown, if the guardians 
were competent witnesses. They were not disqualified by the 
act of 1867. (Sess. L. 1867, p. 183.) They are within the 
first exception to section 2 of that act, as they testified to facts 
which occurred after the death of the father of the wards. 

We shall not re-state the account, as both parties may de- 
sire to offer additional testimony as to the actual amount of 
money received. 

It may also be proper to remark that the court should, at 
the end of each year, add the interest to the principal, and 
thus compound the interest annually, until the final order. 

The judgment is reversed and the cause remanded. 

Judgment reversed. 



The Rockford, Rook Island and St. Louis R. R. Co. 



Ralph Sage. 

1. Sekvices — railroad director — law implies no promise of compensatioiu 
The Itiw will not imply ii ])roinisi' on the part of railway companys to pay 
Iheir directors as such ; and before a director can recover for liis services as 
Buch, it must appear tliat a by-law or a resolution had been adopted allow- 
ing such compensation. It will not be sulUciont to prove that the matter 



1872.] R., R. I. & St. L. R. R. Co. v. Sage. 329 

Opinion of the Court. 

of allowing compensation was talked over by the board when in session, 
where the records of the company fail to show any allowance. 

2. Where a by-law of a railway company provided that whenever any 
bill against the company should be certified as correct by a majority of 
the executive committee, the president or vice-president should draw an 
order on the treasurer for the amount thereof, and that the secretary should 
countersign the same, which order should constitute a proper voucher 
against the company; and a bill for the services of a director was indorsed, 
" approved by the executive committee," and signed by only two of the 
committee, which consisted of five members: Held, that the bill was not 
properlj^ audited in pursuance of the by-law, and afi"orded no evidence of 
an account stated. 

8. Same — director may recover for services rendered apart from his duty as 
director. Where it is shown that a railway director rendered services and 
incurred expenses for the company, since its organization, apart from his 
duty as a director, he may recover for the same upon a quantum meruit. 

4. Corporation, railroad — liability for services performed and expenses 
incurred before organization. While it may be that a party rendering ser- 
vice and incurring expense for a proposed railway corporation, before its 
organization, may recover upon an express promise of the company to pay 
for the same after its organization ; yet, in the absence of such express 
promise, no promise to pay will be implied from the fact that the com- 
pany, when organized, accepts and receives the benefit of the same, as it 
seems more reasonable to hold such services, etc., to have been a gratuity, 
in view of the general good or private benefit expected to result from the 
object of the corporation. 

5. Same — contracts before organization. A right of recovery against a 
corporation for anything done before it has a proper existence, does not 
appear to rest upon any satisfactory legal principle. It is soon enough 
tor such corporate bodies to enter into contracts, incumbering their prop- 
erty, when they are duly organized according to their charters, and have 
their chosen and impartial directors to conduct their business. 

Appeal, from the Circuit Court of Whiteside county ; the 
Hon. William W- Heaton, Judge, presiding. 

Mr. Charles M. Osborn, and Messrs. Hexry & Johnson, 
for the appellant. 

Messrs. Sackett & Bennett, for the app'^llee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an action of assumpsit, by Sage, against the rail- 
road company, to recover for money paid for surveying done 



330 B.., R. I. & St. L. R. R. Co. v. Sage. [Sept. T., 

Opinion of the Court. 

before the company was organized or its charter granted, and 
for services and expenses as director of the company, and for 
$1000 due on an account stated. 

A recovery was had for §1000, which, under the evidence, 
must have been upon what was found to be an account stated. 

The defendant appeals. 

On the trial below, the plaintiff offered in evidence the fol- 
lowing : 

"Mockforcl, Rock Island and St. Louis Railroad Company, 

''To Ralph Sage, Dr. 
"To money expended and services rendered, - - §1000 

"STKRLI^-G, June 3, 1868. 

"(Indorsed.) Approved by the executive committee. 

" ^^'M. Pratt, 
" Wm. S. Thomas." 
With proof that Pratt and Thomas were members of the execu- 
tive committee of the company. 

The company was organized some time in the year 1865, 
the charter having been obtained in the winter of 1865. 
Plaintiff acted as director about two years. After he had 
ceased to be director, he presented this bill for services and 
expenses as director, during- all the time he was such, and as 
commissioner to receive subscriptions for stock. Plaintill' 
testilied to having paid §50 for surveying in the fall of 1864. 
It was in evidence that while Greene, Irwin ct Co. were nego- 
tiating ibr the road, and as it was about to pass into their 
hands, the directors of the road talked the matter over an)ong 
themselves, and they agreed to allow themselves (Sage among 
the rest) §1000 each, for services and expenses. 

There was evidence tending to show that Sage's claim was 
talked over in the board of directors as an organized board, 
and that it was agreed Sage should have §1000. 

The following was one of the by-laws of the company: 

"Article 6. Whenever any bill against the company Vhall 
have been certified correct by a majority of the executive com- 
mittee, it shall be the duty of the president or vice-president 



1872.] R., E. I. & St, L. R. E. Co. v. Sage. 331 

Opinion of the Court. 

to draw an order on the treasurer for the amount thereof, and 
of the secretary to countersign the same, which order shall 
constitute a duly authorized voucher against the company, 
payable by the treasurer from any funds in his hands." 

The executive committee consisted of five members. This 
bill having been approved by only two of them, it was not 
properly audited by the executive committee in pursuance of 
the by-law. 

In Am. Cent. R. R. Co. v. 3files, 52 111. 174, this court 
recognized and adopted the rule that the law does not imply 
a promise on the part of railway companies to pay their 
directors as such, and that it should appear that a by-law or 
a resolution of the board had been adopted to compensate 
them for services, before a director can recover for them. 
Neither such by-law nor resolution here appears. Although 
there is the testimony of one witness that the matter was 
talked over by the board when in session, and that it was 
agreed that Sage should have §1000, the witness will not be 
positive about any action or vote of the board. He says it 
was concluded to have it put in the shape of a bill, and that 
he, and Thomas, another member of the executive committee, 
put their names on the bill, in accordance with the wishes of 
the board. The record book of the meetings and proceed- 
ings of the company shows nothing on the subject of the 
allowance of the claim, and shows no record of any meeting 
of the board of directors held between the 16th day of April, 
1868, and June 4, 1868; and the record of the meeting of 
June 4, 1868, shows the following: 

"On motion, the following resolution was adopted, to wit: 
"Resolved, That the account of Ealph Sage, for services 
rendered as a director of said company prior to the annual 
election, in October, A. D. 1867, be referred to a committee, 
consisting of B. C. Coblentz, James Gait and James E. Ab- 
bott." 



332 U., R. I. & St. L. R. R. Co. v. Sage. [Sept. T., 

Opinion of the Court. 

We find nothing in the evidence which should be consid- 
ered as amounting to the adoption of any resolution by the 
board of directors to pay for these services and expenses, or 
to pay the bill offered in evidence. 

There was some evidence tending to show services rendered 
and expenses incurred by the plaintiff, since the organization 
of tlie company, apart from his duty as a director; for all 
such, he may recover upon a quantum meruit. But there is no 
proof of such services and expenses to the amount of §1000. 

For services and expenses before the organization of the 
company, which, subsequently, the company accepts and re- 
ceives the benefit of, and promises to pay for, we will not say 
a party might not recover, in virtue of such express promise; 
but we are disposed to deny the right of recovery for such 
services and expenses upon any implied promise resulting 
from the facts, although the case, cited by appellee's counsel, 
of Low V. Conn. Pas.vtmjmc River R. R. Co. 46 N. H. 284, 
seems to sanction such a right of recovery ; as does also the 
case of Hall v. Verm, and Afass. R. R. Co. 28 Vt. 401, as re- 
spects services rendered subsequent to the act of incorpora- 
tion, and prior to perfecting the organization of the company, 
but not for services prior to the act of incorporation. 

A right of recovery against a corporation for anytiiing done 
before it had a proper existence, does not appear to rest on 
ajiy very satisfactory legal principle. 

It appears more reasonable to hold any services performed 
or expenses incurred prior to the organization of a corpora- 
tion, to have been gratuitous, in view of the general good or 
private beiu'lit expected to result from the object of the cor- 
poration. Tt seems unjust to stockholders. mIio subscribe and 
pay for stock in a company, that tlieir property should be sub- 
ject to the incumbrance of such claims, and wiiicii they had 
no voice in creating. 

N. Y. and N. IT. R. R. Co. v. Krlchum, 27 Conn. 170, is an 
authority which denies the liability of a corporation on ac- 
count of services rendered nrior to the perfecting of its 



1872.] Russell v. Sycamoue Marsh Harv. Max. Co. 333- 



Sj'llabus. 



organization; and we accept the authority of that case as, in 
our judgment, establishing the more just and satisfactory 
rule. 

In the language of that case, "it is soon enough for cor- 
porate bodies to enter into contracts, incumbering their prop- 
erty, when they are duly organized according to their charters 
and have their chosen and impartial directors to conduct their 
business." To the same effect are Franklin Fire Ins. Co. v. Hart, 
3.' Md. 59, and Safety Life Deposit Ins. Co. v. Smith, ante, p. 309. 

Che judgment must be reversed and the cause remanded. 

Judgment reversed. 



Samuel I. Russell 

V. 

Sycamore Marsh Harvester Manufacturing Co. 

1. New TkiaIj — on the finding from evidence. Where the evidence is 
conflicting and pretty evenly balanced, and the issues fairly submitted to 
the jury on proper instructions, the verdict of the jury will not be dis- 
turbed. 

2. Evidence. Where the defendant, when sued on a warranty, sought 
to exonerate himself, by showing he made the contract as agent for the 
company, whose president he was, and testified, without objection, as to the 
fact of his agency : Seld, that the refusal of the court to allow him to tes- 
tify that he collected the money due under the contract for the company 
was not erroneous, as it could Jiot have added any weight to what he had 
already sworn to, and because the question for the jury was not so much 
whether he was agent, as whether he made the contract in that capacity. 

3. In the same case, the plaintiff proved by a witness that defendant 
said plaintiff was getting a roof with the same warranty that A got. The 
witness also testified that A told him defendant was to warrant his work 
for five years. The defendant then offered in evidence the written war- 
ranty sent to A, to show that the warranty was by his company, which the 



-334 RussEij- V. SycamoheMaksh Harv. Man. Co. [Sept.T.. 

Ojiiniou of the Court. 

court refused to admit. The warranty was not dated, and it was doubtful 
if it was not sent subsequently to the time of the conversation with thf 
witness. Tlie circumstances indicated that the words, " the same warranty 
that A got," referred to the character of the warranty, and not to the per- 
son making it: Held, that the ruling of the court was not erroneous. 

Appeal from the Circuit Court of DeKalb county ; the 
Hon. Theodore D. Murphy, Judge, presiding. 

Mr. D. J. Schuyler, for the appellant. 

Messrs. Divine & Pratt, for the appellee. 

Mr. Chief Justice Lawrence delivered the opinion of the 
Court : 

This was an action, brought by the appellee against Russell, 
to recover damages for breach of an alleged warranty as to 
the quality and durability of a composition roof placed on a 
buildiiiir l^elouging to the appellee. The defense was, that the 
warranty, if made at all, was not by Russell in his individual 
capacity, but by him as the avowed agent of a company called 
the Pioneer ^Manufacturing Company, and that he was pro- 
fessing to bind the company, and not himself. He was, in 
fact, the president of the company. 

The evidence is extremely conflicting, and the question in 
dispute was fairly submitted to the jury, on instructions tc 
which no olijcction is taken. We are asked to reverse the 
judgment bocaiist; the verdict is against the evidence; but we 
consider tlic evidence as very evenly balanced, and aflbrding 
no ground for tlie interference of the court, whether the ver- 
dict had been for tiie ])laintiff or defendant. 

It is also urged that the court erred in excluding evidence 
as to the disposition made by Russell of the money received 
by him on his draft drawn on appellee for payment of the 
roof The appellant desired to prove that he collected the 
money for tiie comj)any. That was. however, in nowise ma- 
terial, except to show thai liu.--.-^c'll was acting as agent of the 



1872.] EussELL V. Sycamore Marsh Harv. Man. Co. 335 

Opinion of the Court. 

company, and he was permitted to testify fully and without 
objection to that fact. The admission of proof that he was 
acting as agent in drawing the draft, and that he collected 
the money for the company, could not have added to the 
weight or force of his testimony already given as to the fact 
of agency. His actual agency may indeed be considered as 
proven, but the question for the jury was, whether he made 
the contract in that capacity. 

It is also urged that the court should have admitted in evi- 
dence the written warranty sent to one Elwood, who had a 
roof put on his building about the same time. This evidence 
is claimed to have been admissible, because Marsh, the agent 
of the appellee, testified that when he was conversing with 
Eussell about putting the roof on appellant's building, he 
understood from Russell that appellee was getting the roof 
with the same warranty that Elwood got; but he had just 
testified that Elwood had told him Russell was to warrant it 
for five years; and when, in the next sentence, he speaks of 
"the same warranty that Elwood got," we understand him to 
refer to the character of the warranty, and not to the person 
making it, since he had already stated Russell was to warrant. 
Besides, the written warranty to Elwood, offered in evidence, 
bears no date. It seems to have been sent when a draft was 
drawn on Elwood for payment of his roof, and was, probably, 
sent subsequently to the conversation between Marsh, Russell 
and Elwood. There is nothing to connect it with the war- 
ranty which Marsh supposed Russell had made to Elwood, 
when, as he says, he expected to get a similar one. We can 
not say the exclusion of this evidence was error. We find no 
ground for reversing the judgment. 

The judgment of the court below is affirmed. 

Judgment affirmed. 



336 Swift et al. v. Lee et al. [Sept. T., 

Syllabus. 



Milton H. Swift et al. 



V. 



Levi Lee et al. 



1 Appearance — sufficiency of -proof to overcome evidence of the record 
ahowing. Where the recoi'd of a suit by attachment recited the appearance 
of tlie defendant, by his attorney, and the entry of a wi'itten motion to 
dismiss the suit, and also a motion to continue the cause: Held, that if 
such an appearance of record could be limited, contradicted or explained, 
it would have to be done by clear and satisfactoiy evidence. 

2. In such a case, where the attorney, shown to have appeared, by the 
record, testifies that he was not authorized to enter the defendant's appear- 
ance, but only appeared in his own behalf as garnishee, and that it was 
with dfficulty he could remember the circumstances; and where the writ, 
ten motions made showed au appearance to the action, and not to the gar- 
nishee proceeding; and where the opposing counsel were clear and positive 
that the attorne}- did appear to the action : Held, that the evidence, if 
admissible, was not sufficient to overcome the evidence afforded by the 
written motions and the recitals of the record. 

3. Levy — sufficiency of description of land. The certificate of a levy 
described the property as " two lots of laud known as the house lot and 
mill lot of the within named A B, sections 19 and 20, township 42, north, 
range 4 east 3 P. M. De Kalb county." The certificate of purchase and 
8heriff''s deed described the lots on section 20, where they were in fact 
situated: ZfcW, that the description was sufficiently certain without the 
words, " sections ID and 20," as the property could be identified by extrinsic 
evidence, and the words indicated would be rejected as surplusage. 

4. Had the description been "two tracts of land of A B, one being 
that upon which he resides, tlie other that upon which liis mill is situ- 
ated," it would have been good, and any further and false description 
would be rejected. 

5. Dkschiption — surplusage. In the description of lands in convey- 
ances and judicial proceedings, it is held that if it can be made certain by 
rejecting that which is repugnant or false, it will be done so as to eflectuate 
the intention of the grantor. 

6. Wlion land is described as a tract on which A's mill is situate, parol 
evidence is admissible to identify A's mill and show where it is, and I 
where this is done the description will be held to embrace the entire j 
tract upon which it is situated. 



1872.] Swift et al v. Lee et al. 337 



Opinion of the Court 



7. 'D-E.Yis^— description, whether sufficiently certain. A testator, in his 
will, after devisin;? certain property to his son, made a further devise, 
describing the subject in the following words: "and all my interest in a 
certain suit now pending in the De Kalb county circuit court, in which I 
am plaintiff" and one Lee is defendant." The proof showed that there was 
a suit in which the testator and another person were plaintiffs and Lee 
and another were defendants: Held, that as no other suit between the 
same parties was shown to have been pending, it would be presumed 
that this latter named suit was the one to which the will referred. 

8. ^AM-E— certainty required in. "Wills making devises are required 
only to be reasonably certain,— so certain only as to enable courts by fair 
and reasonable intendment to ascertain the meaning of the testator. The 
same strictness of interpretation will not be applied to them as to the venue 
of a writ or acknowledgment of a deed. Thus, where reference is made 
to a suit in the circuit court of De Kalb county, without naming the State, 
it will be held to mean the county by that name in Illinois, when it ap- 
pears the testator resided in that county. 

9. Where the testator claimed an undivided half of certain lands fully 
described in a suit by him and the owner of the other half of the title to 
avoid a fraudulent conveyance : Held, that a devise of all his interest in 
the suit was sufficient to pass his claim to the land in controversy in that 



suit. 



10. Fraudttient conveyance. Where a defendant, after he was sued 
for a debt, convej^ed his land to his brother-in-law, who resided in Ohio 
at the time, and who was a man of very limited means, and the sale was 
largely, if not altogether, upon credit, and many years after, it seems, 
nothing had been paid on the deferred payments, and it was proved that 
the grantee appointed the grantor his agent, and gave himself no trouble 
about the property afterwards ; also that the grantee said the land was 
deeded to him without his knowledge at the time, and that he had nothing 
to do with it and should not have: Held, that these facts and other corrob- 
orating circumstances were sufficient evidence that the conveyance was 
made in fraud of creditors. 

Writ of Error to the Circuit Court of DeKalb county ; the 
Hon. T. D. Murphy, Judge, presiding. 

Messrs. Divine & Pratt, for the plaintiffs in error. 

Mr. Charles Kellum, for the defendants in error. 

Mr. Justice Walker delivered the opinion of the Court : 

This was a suit in equity, brought by plaintiffs in error 
in the De Kalb circuit court, against defendants in error, to 
22 — 65th III. 



338 Swift et al. v. Lee et al [Sept. T., 

Opinion of the Court. 

set aside a conveyance from Lee to Webster, alleged to have 
been fraudulently made. The conveyance embraced two 
hundred and forty acres of land. Plaintiffs in error claim to 
derive title under a judgment and execution against Lee and 
in favor of one Harris. The court below, on a hearing, dis- 
missed the bill for want of equity. 

It is not questioned that Lee held the fee simple title. A 
judgment was rendered against Lee, an execution was issued, 
a levy upon and sale of the premises were made thereunder by 
the sheriff, and a sheriff's deed to King and Ruggles, and a deed 
conveying his interest from Ruggles to Swift. King, the 
grantee of the sheriff, died, but made his will, by which it is 
claimed that he devised his interest in the land to John L. 
King, one of the plaintiffs in error. 

It is insisted that the proceeding in attachment was void, 
and the sale under the execution issued on the judgment in 
tliat case conferred no title. The counsel for plaintiffs in error, 
however, contend that Lee entered his appearance to the attach- 
ment suit, and that the judgment was binding, as the court thus 
had jurisdiction of his person as well as of the subject matter. 
The record in that case recites the appearance of the defemlant 
by his attorney, and the entry (if a motion to dismiss the suit, 
and also a motion to continue the case. This is generally con- 
sidered as conclusive evidence of an appearance. But the 
attorney who appeared testified that he was not authorized to 
€nter Lee's appearance, and says he was himself garnisheed 
in the case, and only appeared on his own behalf ]^ut he 
seems to tiiink he diil appear a year subsequently, when a 
motion wMs entered for leave to the sheriff to amend his re- 
turn of the levy. The attorney says it was witii dillieulty 
that he could remember the circumstances, and his evidence 
is by no means clear and satisfactory. 

If suc^h an aj)pearanee of record can be limited, contradicted 
or explained, it would have to be done by clear and satis- 
factory evidence. Here we find an appearance to the suit, 
and not to the garnishee proceeding, and the attorney is not 



1872.] Swift et nl. v. Lek ei al. 339 



Opinion of the Court. 



able to explain .satisfactorily how he came thus to appear, 
whilst opposing counsel is clear and positive that the attor- 
ney did appear and move to dismiss, and to continue the 
case generally, and is positive that Lee was in court at 
the time the motions were made. Again, the motions were 
reduced to writing, the various grounds for the same spe- 
cifically set forth and were signed by the attorney. The 
evidence is not sufficient to overcome the written motions and 
the recitals of the record. There, then, being appearance to the 
action, the court undoubtedly had jurisdiction of the person 
of Lee, and the judgment, although in form, in rem, was valid 
and binding as a personal judgment. 

It is next urged that the description of the land in the levy 
and sheriff's deed was insufficient to give jurisdiction over the 
land in controversy, because of its uncertainty. It is this: 
^'The within writ served by levying upon two lots of land, 
known as the house lot and mill lot of the within named Levi 
Lee; sections 29 and 20, township 42, north, range 4 east 
of 3 P. M., DeKalb county, this 17th January, A. D. 1844." 
The return was subsequently amended by changing 29 to 19, 
by leave of the court. The levy of the attachment, as amended, 
the certificate of levy, the execution and the levy under it, 
all describe the lands as being in sections 19 and 20, but the 
certificate of purchase, the sheriff's deed, and subsequent con- 
veyances describe the lots as being in section twenty. 

It appears that Lee owned no land at the time of the levy 
in section nineteen, but owned what was known as his house 
lot and his mill lot in section twenty. Hence we see the 
sheriff, in the certificate of purchase, departing from all of 
the descriptions he had previously adopted in his various 
returns. The judgment had ordered the premises levied on 
to be sold, and we have seen the levy described the lands as 
being in both sections, and the command to sell, in the special 
execution, was of the same lands. Here was a departure from 
the order of the court and the command contained in the 



340 Swift et al v. Lee et al [Sept. T., 

Opinion of the Court. 

execution. He was directed to sell two lots of ground situ- 
ated in two sections, and he sold two lots in one of the sec- 
tions. Can such sale be sustained so as to divest title? The 
material and all important question to be determined is, was 
the first and specific description sufficient, independent of the 
more general and explanatory description ? Had it said two 
tracts of land of Lee, one being that upon which he resides, 
and the other that upon which his mill is situated, it is be- 
lieved no person could have doubted that the description 
would have been sufficient, and the remainder of the false 
description could have been rejected. 

In the description of lands, in conveyances and judicial 
proceedings, it is held that if it can be made certain by re- 
jecting that which is repugnant or false, it will be done, so as 
to effectuate the intention of the grantor. Myers v. Ladd, 26 
111. 415; Blakeley v. Bestor, 13 111. 708; Miller \. Beeler, 
25 111. 163. If, then, we reject all reference to the sections 
in this description, we would have this : Two lots of land 
known as the house lot and mill lot of the within named 
Levi Lee, township 42, N., R. 4 E. 3 P. M.; and, from the 
authorities, we are warranted in treating this as the descrip- 
tion. 

Is, then, this a sufficient description ? We think it is. Had the 
land been described as tracts of land, as farms, or as quarter 
sections, known as the house farm, etc., and the mill farm, 
etc., we presume there would be no difficulty in identifying 
the premises by extrinsic evidence, which is always admissi- 
ble for that purpose ; and we are of opinion that describing 
these tracts of land as lots renders the description such as to 
easily locate and identify the lands. The question is, where 
is the house lot? And when it is identified, then it must be held 
to embrace the entire tract upon which the house is situated, 
and so of the tract on which the mill is situated. Tiie levy, 
judgment, execution and sheriff's deed, then, must be held 
to have passed tiic land {o the grantee of the sheriff. 



1872.J Swift et al v. Lee et ciL 341 

Opinion of the Court. 

It is next objected that John L. King has no title to the 
premises in controversy. That depends upon the construc- 
tion of the will of Daniel King. This is the clause of his will 
which, it is contended, devised the undivided half of the land 
in controversy: 

"I also give and bequeath to my son, John L. King, the 
east half of the southwest quarter and the northwest quarter 
of the southeast quarter of section eleven, and the southeast 
quarter of the northeast quarter of section thirteen, all in 
township fifteen, north, of range nine east of the fourth prin- 
cipal meridian, containing in all one hundred and sixty acres; 
also the sum of seven hundred and fifty dollars in cash, and 
all my interest in a certain suit now pending in the DeKalb 
county circuit court, in which I am plaintiff and one Lee is 
defendant.^' 

It is first objected that the suit and the matter to which it 
related are not described with sufficient certainty in this clause 
of the will. It describes it as a suit in which he was plaintiff' 
and one Lee is defendant. The proof shows that there 
was a suit in which King and Swift were plaintifi^s, and Lee 
and Webster were defendants, and it appears that the suit 
related to the same land as that involved in this case, and the 
object of the suit was the same. As no other suit between the 
same parties is shown to have been pending, the strong pre- 
sumption is that it was the suit to which reference was made. 
Daniel King was a plaintiff", but not the sole plaintiff, and 
Lee was a defendant, although there was a co-defendant. 
Although not a precise and accurate description of the suit 
then pending, we think it sufficiently specific to leave no 
reasonable doubt that it was the cause to which reference 
was made. 

It is likewise urged that although the suit is described 
as pending in DeKalb county, no State being named, we 
can not know that the county referred to is in this State. We 



342 Swift d al. v. Ler <?< al [Sept. T., 

Opinion of tlie Court. 

find a suit was pending in that county in tliis State, and that 
will be presumed to be the county and suit referred to in the 
will, especially so as the testator resided in that county. We 
would not be justified in applying the same rule in the inter- 
pretation of a will that is applied to the venue of a writ or of 
the acknowledgment of a deed. Devises are not required 
to be certain to every possible intent. They are required only 
to be reasonably certain, so certain only as to enable us, by 
fair and reasonable intendment, to ascertain the meaning of 
the testator. 

It is again urged that the language of the will is so vague 
and indeterminate as not to pass the title to testator's interest 
in the premises. The language is, "all of my interest in a 
certain suit now pending," etc. What was his interest in that 
suit? His claim to this land. No other interest was involved. 
He, in that suit, claimed that he owned an undivided half 
of the land in controversy, and nothing besides. AA ho, then, 
can doubt that he intended to devise to John L. King this 
land? It is true, that other and more specific language might 
have been, and no doubt would have been, used, liad a 
skillful draftsman been employed in preparing the will, but 
nevertheless the intention to devise the land does appear, and 
that must be held to suffice, and |that John L. King became 
invested with the title of Daniel King to the premises iu con- 
troversy. 

The remaining question presented by the record is. whether 
the evidence establishes the conveyance of the land from Lie 
to Webster to have been designed to hinder, delay or defraud 
the creditors of Lee. It ajipears they were brothers-in-law; 
that Wei)ster was a num of limited means, was a blacksmitii 
by trade, lived in Ohio at the time ;, he purchased largely, if 
not altogetiuT, on credit, and seems many years afterwards 
to have paid notinng on the deferred payments. Again, the 
conveyance was made after this suit was brought, but befori' 
tile amendment of the return was made; antl Webster, after 
coming iVum Ohio and exercising acts of ownership over the 



187 2.] Swift et aJ. v. Lee ei al. 343 

Opinion of the Court. 

property for a year or two, returned to his small tract of land 
in Ohio, appointing Lee, a non-resident of this State, his 
agent to look after the property. And he seems to have given 
himself but little concern about the property or the rents, even 
declining to receive them from the agent when offered him 
on one occasion. Shumway seems to have been intimate with 
Webster, and says Webster frequently said to him that the 
laud was deeded to him while he was in Ohio ; that he knew 
nothing of it; that he had nothing to do with it, and should 
not have. This witness says, in the frequent conversations 
they had in reference to the premises in controversy, Webster 
never said that he had purchased them. When these and other 
corroborating circumstances are considered, we can entertain 
no doubt the conveyance was made to prevent Harris from 
collecting his debt. 

In such cases we can not expect that more direct evidence 
can be had. The circumstances surrounding the transaction 
strongly tend to prove fraud; and if Shumway is to be cred- 
ited, and his evidence is uncontradicted, Webster unequivo- 
cally admitted the fraud. That standing, as it does, con- 
fessed, the court below should have rendered a decree setting 
aside the sale, and for failing to do so, the decree dismissing 
the bill is reversed and the cause remanded. 

Decree reversed. 



344 Keanert v. Simon et al [Sept. T., 

Opinion of the Court. 



F. Kranert 

V. 

Leopold Simon et al. 

1. Sale of goods — bona fide creditor of vendee taking mortgage on, not 
affected by subseqtoent knowledge of tlie fraud of vendee. Where a bona fide 
creditor of one who purchased goods and obtained possession thereof by 
means of fraudulent representations, took a mortgage on such goods with. 
out notice of the fraud : Held, that he was to be regarded an innocent pur- 
chaser, and could not be deprived of his rights thus acquired, bj' a subse- 
quent knowledge of the fraud of his debtor. 

2. Therefore, where the court, on the trial of an action of replevin 
(the declaration also containing a count in trover) by the vendor of goods 
against the purchaser, and a creditor of the latter who had acquired the 
goods under a chattel mortgage given him to secure a debt, etc., instructed 
the jury that if the creditor of the purchaser took the goods after they 
had been so fraudulent]}^ purchased, with knowledge of the fact of such 
fraud, which was also set out in a preceding part of the instruction, then 
the latter was not an innocent purchaser, etc: Held, that the instruction 
was erroneous, in being directed to the time of taking the goods under 
the mortgage, instead of to the time of taking the mortgage. 

3. If a person, who has purchased goods by means of fraudulent rep- 
resentations, sells and delivers tliem to his creditor in payment of a pre- 
existing debt, who accepts them bona fide without notice of the fraud, such 
creditor will be protected as an innocent purchaser against any claim of 
the original owner, to the same extent he would be if he had paid a new 
consideration therefor. 

Appeal from the Court of Common Pleas of the city of 
Aurora; the Hon. Richakd G. Montony, Judge, presiding. 

Mr. C. J. Mktzner, for the appellant. 

Mr. Frank M. Annis, for the appellees. 

Mr. Justice Breese delivered the opinion of the Court: 

Tlii.s wa.s an notion of replevin, with a count in trover, 
resulting in a verdict and judgment for the phuntiffs. Kra- 
nert alone appeals. 



1872.J Kraxert v. Simon et al 345 

Opinion of the Court. 

The ground on which the right to recover was based is, 
that one Buttner, who purchased the goods of the plaintiffs, 
had effected the purchase by fraudulent representations as to 
his solvency, and that appellant, Kranert, participated in the 
fraud. 

Kranert claimed that he took a chattel mortgage on the 
goods, in good faith, with no knowledge of any fraud, in 
order to save himself for money advanced to Buttner, and 
for contingent liabilities on his account to a large amount. 

The goods were purchased by Buttner, at Chicago, and one 
of the plaintiffs testified that it was a custom among the mer- 
chants of that city to sell goods on a credit of ninety days, 
even when they do not know anything of the circumstances 
of the purchaser, save from his own statements. This we 
should not deem a very safe custom, and doubt very much if 
it be verv common in that citv, or anvwhere else. 

We have directed our attention entirely to the instructions 
given for the plaintiffs. 

The first instruction is as follows : 

"If the jury believe, from the evidence, that the plaintiffs 
were originally the owners of the goods in controversy, and 
Buttner went to plaintiffs, in Chicago, and falsely and fraudu- 
lently represented to the plaintiffs that he had fifteen hundred 
dollars of stock on hand, had real estate, and was indebted 
only fifty dollars ; and by such false and fraudulent repre- 
sentations he induced plaintiffs to sell the goods; and that 
such statements were false; that said Buttner had onlv three 
or four hundred dollars worth of goods, and was indebted 
some eleven hundred dollars, and had no real estate; and 
that said Buttner knew such statements to be false, then, upon 
such state of facts, no title would pass to said goods from 
plaintiffs to Buttner; and if the jury further believe, from the 
evidence, that Kranert had knowledge or participation in 
said fraud, or aided or assisted therein, or took the goods 
after they had been so purchased, with knowledge of the fact 



346 Kraxert v. Sniox d al. [Sept. T.^ 

Opinion of tlie Court. 

of such fraud; and if the jury further believe, from the evi- 
dence, that Buttuer and Kranert jointly converted the goods, 
and participated in the proceeds of those not found, then the 
law is for the plaintiffs, and Kranert is not an innocent pur- 
chaser, and the jury should find for the plaintiffs on both 
counts in the declaration, and find the value of the goods so 
converted, which have not been replevied by the sheriff, as a 
part of the damages in this case." 

The point of this instruction is directed to the taking of 
the goods by appellant, M'hen it should have been directed to 
the taking of the mortgage. Admitting appellant to have 
been a bona fide creditor of the purchaser of these goods, and 
it is not denied he was such creditor, then he had a right to 
take the mortgage to secure himself; and if he had no knowl- 
edge at the time of such taking, he must be deemed an in- 
nocent purchaser, and could not be defeated of his rights 
by knowledge subsequent that the grantor in the mortgage 
had obtained the goods by fraudulent representations. This 
instruction is objectionable, and was not corrected bv anv 
subsequently given. 

We think the eleventh instruction for appellant should 
have been given. It is as follows : 

"Property obtained by fraudulent representations can not 
be recovered from an innocent purchaser for a valuable con- 
sideration by the original owner. If, therefore, the jury be- 
lieve, from the evidence, that the goods in question were 
<>l)taiuc'd by Buttner from plaintiffs by fraudulent representa- 
tions, and that the defendant. Kranert, was an innocent pur- 
chaser lor a valuable consideration, then the plaintiffs can not 
recover." 

This instruction embodies the doctrine sanctioned bv this 
(•(uirt in Butters v. Ilaughront et al. 42 111. 18, where it was 
lu'ld, where a jiorson had purchased goods bv means of fraudu- 
lent representations, sold and delivered them to his creditor 



I 



1872.] Grimes v. Butts. 347 

Syllabus. 

in payment of a pre-existing debt, who accepted them bona 
fide, and without notice of any fraud in his vendor in obtain- 
ing the goods, such creditor was held to be a purchaser for a 
valuable consideration, and will be protected as such, against 
any claim of the original owner, to the same extent he would 
be protected if he had paid a new consideration for the goods 
at the time they were delivered to him, under the purchase. 

Appellant was entitled to this instruction. 

In the state of the evidence, which is not very satisfactory, 
giving appellees^ first instruction and refusing to give the 
eleventh instruction asked by appellant, must have prejudiced 
appellant's case, and justice requires it should be submitted 
to another jury, on proper instructions. 

The judgment is reversed and the cause remanded. 

Judgment reversed. 



Michael Grimes 

V. 

Stewart Butts. 

1. Trespass to realty — evidence tending to show exclusive possession. 
Where a defendant, who was sued in trespass for entering upon the possession 
of plaintiff and carrying ofl" rails, sought to justify upon the ground that 
the premises entered were a part of the estate of a deceased person, and 
that his wife was one of the heirs, in whose right he acted, and that no le- 
gal partition had ever been had, but that plaintiff and his wife were ten- 
ants in common, the plaintiff offered in evidence the record of proceedings 
for partition made long before the alleged trespass, but which were de- 
s fective in failing to show that the report of partition had ever been ap- 
j proved, and showed by other evidence that possession had been taken by 
I the several parties in interest, of the parts assigned to each, the minors 
ij acting through guardians, and an acquiescence for several years. The cir- 
f cuit court excluded the record as evidence, and a verdict was had for the 



348 Grimes v. Butts. [Sept. T., 

Opinion of the Court. 

defendant: Held, that the court erred in excluding the evidence, as it 
tended to show an exclusive possession which, if shown, entitled the plain- 
tifi' to recover. 

2. Instructions — exception to. When the record fails to show any ex- 
ception taken to the giving or refusing of instructions, the ruling of the 
court below in giving or refusing them will not be considered by this 
court. 

Appeal from the Circuit Court of Knox county; the Hon. 
Arthur A. Smith, Judge, presiding. 

Messrs. Craig & Harvey, and INIr. H. N. Keightley, for 
the appellant. 

Messrs. Hannaman & Kritzinger, for the appellee. 

Mr. Justice Scott delivered the opinion of the Court : 

This was an action of trespass, originally commenced before 
a justice of the jieace, by appellant against appellee. It is 
alleged that appellee entered upon the premises of appellant 
and removed a lot of rails from thence, and this action waa 
instituted to recover for the value of the property so taken. 

On the trial in the circuit court, appellant proved the pos- 
session of the land from whence the rails had been taken, and 
the value, and rested his case. 

Appellee sought to justify the taking on the ground that 
the premises where the rails were situated were a part of 
the estate of Michael Hickey, deceased; that he was the huS' 
band of one of the heirs, and that there had never been any 
legal partition of the estate; that he acted on behalf of hi 
wife, and that his wife being a tenant in common af the estate, 
appellant could not maintain the action. 

Appellee, to maintain his defense against the objectioi 
of appellant, introduced the files in a certain cause pend 
ing in the circuit court wherein Johanna ^lalone et af. are pe 
titioners, and Michael Grimes is defendant, for partition of 






1872.] Grimes v. Butts. o49 

Opinion of the Court. 

the estate of Michael Hickey, deceased, which proceedings 
however have been instituted since the commencement of the 
present action. 

Appellee also gave in evidence the files in a certain par- 
tition suit in the circuit court, wherein Johanna Hickey et al. 
were petitioners, and John Hickey et al. were defendants, for 
a partition of this same estate. The petition in this latter 
case was filed in 1853. In it the lands of which Michael 
Hickey died seized were described, and the names of his 
heirs given. 

At the September term, 1853, commissioners were appointed 
by the court to make partition and assign dower in accord- 
ance with the prayer of the petition. It does not appear that 
these commissioners ever made any report, and others were 
appointed by the court at the April term, 1855. The com- 
missioners last appointed made a report which is entitled of 
the September term, 1855, in which they "say they have as- 
signed dower to the widow, and divided the remainder of the 
estate between the heirs, which report is accompanied by a 
plat showing by numbers the respective lots assigned to each. 

The witness Lewis was called by appellee and testified that 
he was clerk of the circuit court in 1864; that he had never 
seen any decree confirming the report of the commissioners; 
that the report had the appearance of having never been filed ; 
that he never saw this paper among the papers before, and 
that the cause was on the docket when he went into office. 

Appellant then proved that the report of the commis- 
sioners was found among the files of the partition suit, and 
that soon after the making of the report and plat, the heirs 
that were then of age took possession of the respective lots 
assigned to each of them, and the guardians of the minors 
took possession of the lots set apart to them, and that the 
lands were so occupied in severalty for a period of from thir- 
teen to fourteen years prior to the committing of the alleged 
tresspasses. 



350 Grimes v. Butts. [Sept. T., 

Opinion of the Court. 

Appellant also proved that Johanna Hickey, one of the 
heirs of Michael Hickey, deceased, died without issue, and 
that after all the other heirs had become of age, they caused 
the lot which had been assigned to her, to be surveyed and 
numbered into lots corresponding in number with the number 
of the heirs who would inherit the same, and by a parol agree- 
ment they drew for the lots, and each entered into possession 
of the lot so drawn by him or her, and continued to occupy 
the same up to the commencement of this suit. The division 
was by parol, and no deeds were ever executed in pursuance 
thereof. 

On motion of appellee, the court excluded from the consid- 
eration of the jury the evidence given by appellant, and that 
decision is one of the causes assigned for error. 

The testimony given tended to show an exclusive possession 
in appellant of the premises on whicli the alleged trespasses 
were committed, and in that view it was proper evidence for 
the consideration of the jury. Whether the partition was legal, 
or not, it was certainly a parol division of the estate, and 
tended to show a severance of the possession. The partition, 
such as it was, was acquiesced in by the adult heirs, and by 
those who were minors at the time after they attained their 
majority. 

There are numerous cases that hold that a parol ]>artition 
of an estate, followed by possession, will be valid and suf- 
ficient to sever tiie possession, so as to give to each co-tenant j 
the rights and incidents of an exc^hisive possession of his own 
])n)perty. Tomlin v. Hihjard, 43 111. 300, and cases cited. 

Appellant held as pnrchaser from one of the heirs, and the 
evidence tended to show an exclusive possession in himself of i 
the premises where the alleged trespasses were committed, and | 
it was error in the court to exclude it. If appellant had the] 
exclusive possession of the j)remises, he could undoubtedly 
maintain the action. 

It is assigned for error that the court erred in giving and 
refusing instructions. No exception having been taken to the 






1S72.] TiERNAN ei al. V. Granger. 351 

Syllabus. 

action of the court, at least none appearing in the bill of ex- 
ceptions, we can not consider this ground of error. 

For the error indicated, the judgment is reversed and the 

cause remanded. 

Judgment reversed. 



Patrick Tiernan et al. 

V. 

Elihu Granger. 

1. Specific performance — contract must be proved as laid. Ou bill for 
the specific performance of a contract, whether it be for the sale of land 
or the giving of a chattel mortgage to secure an indebtedness, the contract 
must be proved as laid in the bill ; and where the decree finds the contract 
materially and substantially dift'erent from the one stated, the error will be 
fatal. 

2. Statute op frauds — what iciU take case out of. A contract by which 
the complainant was to sell and set up for the defendants certain machin- 
ery and fixtures, to be paid for in installments, the last of which was to 
fall due fourteen months after the date of the contract, the payments to be 
secured by chattel mortgage on the machinery when set up, is within 
the statute of frauds; but if the defendants, being insolvent, should, 
under such agreement, obtain the machinery and fixtures, and then refuse 
to give the mortgage, it would be a fraud upon the complainant for which 
he could have no adequate remedy at law, and a court of equity would 
not only take jurisdiction, but would not permit the defendant to avail 
of the statute. 

3. Evidence — to vary written contract. Where a party, in his pleading, 
sets up and relies on a contract reduced to writing, he will not be allowed, 
by parol evidence, to show a diflerent contract in essential particulars. 

4. Vendor and vendee — measure of seller^s recovery. There is no rec- 
ognized principle upon which the seller, either in an action at law for 
damages, or in equity for specific performance, can be placed in a better 
position than he would have occupied, if the purchaser had performed. 



352 TiERXAN et al. v. Granger. [Sept. T., 

Opinion of the Court. 

Writ of Error to the Circuit Court of Cook county; the 
Hon. Erastus S. Williams, Judge, presiding. 

Mr. William T. Burgess, for the plaintiffs in error. 

Messrs. Linder & Munn, for the defendant in error. 

Mr. Justice McAllister delivered the opinion of the 
Court : 



This was a suit in equity, brought in the Cook county cir- 
cuit court October 18, 1869, by Granger against Tiernan & 
Muldoon and another, to enforce the specific performance of 
a contract relating to personal property. The contract laid 
in the bill was, that about February 17, 1869, Granger en- 
tered into a contract of sale with Tiernan & Muldoon where- 
by he was to sell them, for the sum of $1500, certain machin- 
ery and fixtures, specifying it to be set up by Tiernan ct Mul- 
doon, at No. 138 South Water street, Chicago, and. when set 
up, the latter were to secure said sum by chattel mortgage for 
the payment of said §1500, as follows: §400, payable May 1, 
18G9; §400, payable August 17, 1869; $400, payable Febru- 
ary 17, 1870, and $300, payable August 17, 1870, with inter- 
est upon said payments, after clue, at ten per cent per annum. 
A substantial memorandum of which agreement was then and 
there made in writing by one Elias Shipman, in Granger's ac- 
count book, at the request of the parties, a copy of which is 
therewith filed, nuirked exhibit "A," and made part of the 
bill. The exhibit shows the terms of the contract as above 
set forth. 

The bill alleges that Granger began to put in the machin- 
ery, etc., under the agreement, about February 18, 1869, and 
about April 20, 1869, hud it in running order; that he there- 
upon dcmandeil of Tiernan & Muldoon their several promis- 
sory notes for said specific payments, and the execution of a 
chattel mortgage for the payment thereof, wliich they refused 
to give. 



1872.] TiEHNAN et ah v. Geaxgee. 353 

Opinion of the Court. 

The bill admits a payment of $415; alleges that there is a 
balance of $1085 due complainant, and interest, according to 
the terras of the contract. The bill also alleges that^ at the 
time of the sale, plaintiif was informed that Tiernan & Mul- 
doon were pecuniarily irresponsible, and for that reason it was 
distinctly understood that he was to have a lien on the ma- 
chinery for the purchase money. 

Prayer for specific performance and general relief. 

Although there was no prayer for an injunction, there was 
nevertheless an injunction issued, upon the day of filing the 
bill, enjoining the defendants from removing, selling or dis- 
posing of the machinery, etc. 

The defendants filed an answer denying the making of the 
contract or said memorandum, as alleged, and fully answering 
all the allegations of the bill. 

Upon replication filed, the cause was referred, by agreement 
of the parties, to the master to take the proofs, and report same 
and facts to the court. This report is incorporated into the 
decree. It finds that a contract of sale was made February 
17, 1869, and sets forth the terms as proved, which are sub- 
stantially as set out in the bill, with the material addition and 
variation following : It finds, as part of the agreement, that 
Tiernan & Muldoon were, upon the machinery being put up, 
to execute and deliver to complainant their four promissory 
notes, in writing, of the date first aforesaid (February 17, 
1869 , the first three of which for $400 each, and the last for 
$300; said notes to be payable to the order of complainant, 
with interest at the rate of ten per cent per annum, to May 
1st, 1869, August 17, 1869, February 17, 1870, and August 
17, 1870, and that Tiernan & Muldoon were to secure these 
notes by chattel mortgage. 

There is no allusion to notes in the contract, either as laid 
in the bill, or in the alleged written memorandum of the 
agreement, which was made a part of the bill, and, by both, 
the installments were to draw interest o»ly after- due. 
23— 65th III. 



354 TiKRXA.v et al. v. Granger. [Sept. T., j 

Opinion of the Court. 

The agreement is one which was not to be performed within 
the space of one year from the making thereof. It was, 
therefore, within the statute of frauds. 

The bill alleges complete performance of it by complainant, 
which is sustained by the proof Then, if the purchasers 
were insolvent, but having, under an agreement to give the 
chattel mortgage, obtained the possession of machinery and 
fixtures, they then refused to give it, this would be a fraud 
upon the complainant, for which he would have no adequate 
remedv at law, and a court of equity M'ould not only take ju- 
risdiction, but would not permit the defendants to avail them- 
selves of the statute of frauds. 

But the contract must be proved as laid. This is the rule 
in suits to enforce specific performance of oral contracts for 
the sale of lands, and is equally applicable here. Lester v. 
Foxcroft, 1 Lead. Cas. in Eq. 737, and cases cited. 

The decree finds a contract made between the parties sub- 
stantially and very materially different from that laid in the 
bill. The bill alleges that a substantial memorandum of the ' 
agreement was made at the time, in writing, by the agent of 
all the parties, and that writing is made a part of the bill, but 
by which no allusion is made to any promissory notes, and it j 
expressly appears that the several installments of purchase 
money were not to draw interest until after they respectively 
came due. 

According to the contract set out, the decree is clearly 
erroneous. If the contract, as laid, had been specifically ])er- 
forraed, the complainant would have been entitleil to interest 
only after the respective installments came due. But by the 
decree he is allowed interest on the purchase money at tiie 
rate of ten per cent per annum iVcnn February 17, 1869, the 
time of making the contract. This was wrong. There is no 
recognized principle upon which the seller, either in an action 
at law for damages, or suit in equity for specific performance, 
can be ]ihico(l in a better position tlian he would Imve 



1872.] Armour v. Eichelberger. 355 

Syllabus. 

occupied, if the purchaser had performed. This point was ex- 
pressly adjudicated in Stevens v. Bradley, 22 III. 244, although 
it does not appear in the reporter's note of the case. 

But the allowance of interest from the time of making the 
contract embraces a two-fold error. Complainant relied upon 
a contract reduced to writing and set out in the bill. Then, 
in violation of an elementary rule of pleading and evidence, 
he established, by proof, a different contract, in essential par- 
ticulars, from that set out, and in doing so, added to and va- 
ried a written contract, by parol evidence. 

The decree is manifestly erroneous, and must be reversed, 
and the cause remanded. 

Decree reversed. 



Archibald Armour 

V. 

Daniel Eichelberger. 

Promissory note — whether affected by a rescission of contract. The pur- 
chaser of land under a contract gave his notes at the times the first three 
installments of interest fell due, for an extension of the time of payment, 
as was claimed by the one, and in payment of interest, as was claimed by 
the other, and afterwards finding himself unable to complete his purchase, 
informed the rendor that he could not pay for the property, and requested 
him to take it back and surrender these notes. This the vendor declined 
to do. Afterwards the contract was rescinded, without the surrender of 
the notes, by mutual consent: Held, that the notes so left in the hands of 
the vendor were valid obligations, and a recovery thereon was proper„as 
the purchaser acquiesced in their being retained at the time of the rescis- 
sion of the contract of sale. 

Appeal from the Circuit Court of La Salle county; the 
Hon. Edwin S. Leland, Judge, presiding. 



356 Armour v. Eichelberger. [Sept. T., 

Opinion of the Court. 

This was an action of assumpsit, by the appellee against the 
appellant, upon certain proraiiisory notes given by the latter 
to the former. It appeared that the appellee sold appellant 
certain real estate, evidenced by a contract only, no notes be- 
ing given for the purchase money. As the several install- 
ments of interest became due, appellant, being unable to pay, 
gave the notes sued on, as lie contended, merely for an exten- 
sion of the time of payment, and, as the other party contended, 
as payments of interest. The other facts material to an under- 
standing of the case are stated in the opinion. 

IMessrs. Blanchard, Silver & Corwin, and Messrs. El- 
DRIDGE & Lewis, for the appellant. 

Messrs. Stipp Sz Bowen, for the appellee. 

Mr. Justice Thornton delivered the opinion of the Court: 

One view which may properly be taken of the evidence in 
this case, dispenses with the necessity of any discussion as to 
the effect of a rescission of the contract of purchase, or the 
questions chiefly argued, whether the notes were given for 
extension of time of payment, or in discharge of interest 
which had accrued. 

The decided weight of the testimony is, that the rescission 
of the contract was the result of the mutual agreement of the 
parties. 

The vendee failed to comply with the terms of purchase, in- 
formed the vendor that he could not pay for the property, and 
requested him to take it back. It is true, he desired the sur- 
render of the notes in controversy. This was refused, and 
the vendor assumed control of the property, but no demand 
"was made for the notes by tlie vendee. He acknowledged hia 
utter inability to comply, voluntarily refused to proceed to 
fulfil his stipulations, and the jury might fairly have in- 
dulged the inference that he absolutely renounced all benefit i 
arising out of the contract. 



1872.] Ci.AYES V. White. 357 

Syllabus. 

The vendor was anxious and ready to perform. He had 
made a good bargain, and the market value of the property 
had depreciated since the sale. The vendee, on the contrary, 
though he had made some improvements, had enjoyed the 
rents and profits for nearly three years, was still liable for the 
whole of the purchase money, proposed a rescission, and, 
though he expi'essed a wish for the notes given for interest ac- 
crued, he yielded the control of the property, and acquiesced 
in the collection of rents, and the possession of the notes, by 
the vendor, without any complaint. 

We are not satisfied that any injustice has been done, and 

affirm the judgment. 

Judgment affirmed. 



Levi M. Clayes 

V. 

Jacob H. White. 

1. Indorsement rN blank of note — right to fill up with guaranty — estop- 
pel. Where the holder of a note indorsed in blank, wrote over the name 
of the indorser an ordinary assignment, upon which he sued the indorser, 
seeking to hold him on the conditional contract of assignment, and re- 
I covered judgment, which was reversed; and on the trial of another suit, 
J he oflered the same note in evidence, with a guaranty of payment added 
to the words of assignment, and introduced evidence tending to prove a 
: verbal agreement of guaranty: Held^ that, aside from the objection of the 
: want of authority to alter or vary the legal effect of the indorsement in 
blank, or of the competency to do so by evidence of a verbal guaranty, the 
holder, having elected to fix the indorser's liability as the conditional one 
of assignor, and sought to enforce the same, was concluded from setting up 
J a diflFerent and absolute liability as guarantor, either by writing over the 
■ indorser's name, or by making proof of a verbal guaranty. 



358 



Clayes v. White. 



[Sept. T., 



Opinion of the Court. 



2. Set-off — of a demand in a pending suit. The pendenc}'' of another 
action for a claim offered as a set-off does not defeat the right of set-off. 

3. Where the holder of an assigned promissory note had recovered 
judgment against his assignor and collected the same, and the defendant 
in that suit, after a reversal of the judgment, brought suit to recover back 
the money paid by him on the judgment: Held, that the defendant in the 
latter suit might set off whatever sum he could show he was entitled to 
recover of the plaintiff upon his assignment of the note, notwithstanding 
the pendency of the former suit 

Appeal from the Circuit Court of Will county ; the Hon. 
Sidney W. Harris, Judge, presiding. 

Mr. R. E. Barber, Mr. F. Goodspeed, and Mr. H. Snapp,; 

for the appellant. 



Messrs. Olin & Phelps, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Courts 

This was a suit brought by White against Clayes, to recovei 
for money paid on an erroneous judgment, which, subsoqucni 
to tlie payment of the money, was reversed in the Supreme 
Court. 

The defendant below, among other matters, set up in dei 
fense that, at the time of tlie payment of the money to hii 
he held a promissory note dated November 10, 1858, made bj 
one Zeigfcld to Peter Folkers, for ^200, payable two yeai 
after date, with ten per cent interest, indorsed by Folker tC 
White, and which White had indorsed and guarantied the pavJ 
ment of to the defendant; that the note was due and unpaic 
and that suit against Zcigfeld, the maker, would have beel 
unavailing ever since the maturity of the note. 

Tlie court, after hearing the evidence, excluded all this aU 
temj)ted defense. 

So far as related to the alleged guaranty of payment, thj 
ruling was correct. 



1872.] Clayes v. White. 359 

Opinion of the Court. 

The indorsement on the note, as it appeared at the time of 
trial, was as follows: 

"Pay to Levi M. Clayes, and I guaranty the payment of 

the within note. 

"J.H.White.'' 

Originally the indorsement was in blank by White. The 
suit wherein the said reversed judgment in question was ren- 
dered was one against White as indorser of this note, and du- 
ring its prosecution Clayes' attorney wrote over the name of 
White the words, "Pay to Levi M, Clayes," and shortly before 
the trial of the present suit, Clayes' attorney wrote the addi- 
tional words over White's name, "and I guaranty the payment 
of the within note." 

There was evidence tending to prove a verbal agreement of 
guaranty by White, at the time he transferred the note to 
Clayes, and made his indorsement in blank. 

Aside from the objection of the want of authority to alter 
and vary the legal effect of White's indorsement in blank by 
writing over it a guaranty, or of the competency to do so by 
evidence of a verbal guaranty — Mason v. Burton, 54 111. 350 ; 
Howe V. Merrill, 5 Cush. 80; Seaherry v. Hungerford, 2 Hill, 
80 ; Beattie v. Browne, Exr. 64 111. 360, we think Clayes must 
abide by the contract as he made it to be, by filling up the in- 
dorsement as a mere assignment. He thereby elected to de- 
clare and fix the liability of White to be the conditional one 
of assignor, and proceeded to enforce, and is now endeavoring 
to enforce in another suit, that, as the liability of White ; the 
latter had the right to repose upon that as the full measure of 
his obligation. And Clayes, we think, should be held con- 
cluded from setting up a different and absolute liability as 
guarantor on the part of White, either by writing over his 
signature in blank a guaranty, or by making proof of a ver- 
bal guaranty. 

Under the stipulation of the parties, the note could have 
been introduced as a set-off" under the assignment made of it, 



360 DuPage County et al. v. The People ex rel. [Sept. T., 

Syllabus. 

and if suit against the maker of the note would have been 
unavailing in whole or in part from the time of the maturity 
of the note, then defendant should have been allowed, in set- 
off, the amount of the note, or so much thereof as could not 
have been collected by suit against the maker. 

The reason assigned by the court for the exclusion of this 
portion of the defense was, that the original suit of Oaijes v. 
White, which is a suit on the assignment of the note, was .still 
pending. 

But the pendency of an action for the claim offered in set- 
off does not defeat the right of set-off. King v. Bradley, 44 
111. 342; Gaddis v. Leeson, 55 id. 523; 1 Chitty PI. 572. 

The judgment of the court below must be reversed and the 
cause remanded. 

Judgment reversed. 



The Board of Supervisors of DuPage County et al. 

V. 

TiiK Peoplk, etc. ex rel. Willard Scott et al. 

1. ElilCTIONS — eff'ect of an adjournment by the judges. Wlicre the judges 
of election of a township, at an election to determine tlie question of re- 
moval of a county seat, took a recess of an hour at 12 o'clock, and went 
borne to dinner, hut it was not pretended that the adjournment was for 
any improper i)urpose, or that there was any tampering with the ballot 
box, or that tliere was any fraud or wrong of any sort committed or con- 
templatotl, or that any voter lost his vote in. consequence thereof: Ileld^ 
that tliis was no ground for rejecting the entire poll of the township. 

2. Same — proof required of non-registered voter. The oat?i of a house- 
holder aud registered voter, required to prove the qualification of a non-j 
registered voter, is required to be in writing, or, in other words, the proof 
to be made by such witness must be an alVulavit, so that the same may be 
preserved. 



1872.] DuPage County et al. v. The People ex rcl. 361 

Opinion of the Court. 

( 3. Wliere a non-registered voter simply files his own affidavit as re- 
quired by the statute, but does not produce with it the affidavit of a 
householder and registered voter, the statute is plain that his vote shall 
not be received. 

4. It appeared, upon the contest of an election on the question of re- 
moving a county seat, that various persons, whose names were not regis- 
tered, were allowed to vote upon their own affidavit, without the produc. 
tion of the affidavit of a householder, but that, in fact, such householder 
was sworn to the printed affidavit printed on the same paper with that 
of the voter, and the magistrate affixed his jurat to the affidavit of the 
voter alone: Held, on reversal for another cause, that the parties should 
be allowed to show that the voters in question were, in fact, legal voters, 
and that the affidavits filed by them were, in fact, sworn to not only by 
them, but by the witnesses required by the statute. 

AppEAii from the Circuit Coui-t of Cook county; the Hon. 
E. S. Williams, Judge, presiding. 

This was a proceeding in chancery, commenced by the ap- 
pellees in the circuit court of DuPage county, to determine 
a controversy relating to the result of an election held in that 
county on a proposition for the removal of the county seat. 
A change of venue was had, and the cause transferred to the 
circuit court of Cook county. That court decreed in favor 
of the appellees, and from that decision an appeal was taken 
to this court. 

Messrs. Miller, Frost &, Lewis, for the appellants. 

Messrs. Beckwith, Ayer & Kales, Mr. H. H. Cody and 
Mr. E.. N. Murray, for the appellees. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

It is unnecessary to discuss the constitutional questions 
raised in the argument of this case, as the same questions 
were considered and decided in the case of Siq^ervisoi'S of Knox 
County V. Davis, 63 111. 405. 

The appellants assign for error the decision of the court in 
rejecting the vote of the town of Winfield because the judges 



k 



362 DuPagio County et al. v. The People ex rel. [Sept. T,, 
Opinion of the Court. 

of the election took a recess of an hour at 12 o'clock, aud 
went home to dinner. It is not claimed that the adjournment 
was for any improper purpose, or that there was any tamper- 
ing Avith the ballot box, or that there was any fraud or wrong 
of any sort either committed or contemplated. Xeither does 
it appear that any voter lost the opportunity of voting. 

The statute, however, positively forbids an adjournment; 
and the question is, what is the consequence of its violation 
in a case like the present, where there is neither fraud nor 
injury? Are the voters of the precinct, who have voted in 
good faith, to be practically disfranchised by the mistake of 
the judges of the election, or will the courts inquire whether 
the adjournment has been for a wrongful purpose, and. if no 
wrong appears and no injury is done, leave the officers to such 
penalty as the law imposes, but retain the votes? 

We can not distinguish this case, in principle, from that of 
Piait v. The People, 29 111. 72, where the question was as to 
the effect of receiving votes after 5 o'clock, that being the 
hour at which the law required the polls to be closed. The 
court there used the following language : 

"The rules prescribed by law for conducting an 'election 
are designed chiefly to afford an opportunity for the free and 
fair exercise of the elective franchise, to prevent illegal votes 
and to ascertain, with certainty, the result. Such rules are 
directory merely ; not jurisdictional or imperative. If an 
irregularity, of which complaint is made, is t^hown to have 
deprived no legal voter of his right, or admitted a disquali- 
fied person to vote — if it casts no uncertainty on the result, 
and lias not been occasioned by the agency of a party seeking 
to derive a benefit from it — it may well be overlooked, in a 
case of this kind, when the only question is. which vote was 
tiie greatest — that for the subscription or tluit against sub- 
scription?" 

In that case the complaint was that the polls were kept 
open too long; in this, it is objected that they were closed for 



1872.] DuPage County d al v. The People ex rel. 363 
Opinion of the Court. 

an hour, when they should have been open. In that case the 
court held it might be proved what votes were polled after 
5 o'clock. These votes would, of course, be rejected, but that 
would not vitiate the entire poll. 

We will not now decide, as the question is not presented 
by this record, what should be the rule, in a case like the 
present, if it appeared that legal voters had sought to vote 
and had lost the opportunity of voting in consequence of the 
recess. 

Counsel for appellees insist that, as the language of the 
statute is negative in its cliaracter, more weight is to be at- 
tached to it than if words of positive prohibition had not 
been used; but the difference between saying that there shall 
be no recess or adjournment until all the votes are counted, 
and saying that the polls shall be closed at a certain hour, is 
rather fanciful than real. The question in either case is not 
whether the legislature has expressed its command in affirma- 
tive or prohibitory terms, but what is the nature of its com- 
mand, and what the purpose, character and extent of its vio- 
lation in the particular case, and then determine whether 
justice requires the entire poll to be suppressed, in conse- 
quence of a non-observance of the law, that may have been 
free from either wrongful intent or injurious effect. Of course, 
if the legislature fixes the penalty, no question for construc- 
tion is leit; but where it has not done so, as in this instance, 
the rule we have announced is in harmony with the previous 
decisions of this and other courts. The precise question was 
decided in Fry v. Booth, 19 Ohio St. 25; see also People \. 
Cook, 4 Selden, 67. 

We are of opinion the court erred in rejecting the entire 
vote of Winfield precinct. 

The appellees assign, as a cross-error, that the court ought 
to have excluded a great part of the non-registered vote of 
Milton township, because proof was not made, as required by 
the statute, of the residence of the voter, by the oath of a 
householder and registered voter. 



364 DuPage County et al. v. The People ex rel. [Sept. T., 

Opinion of the Court. 

Section 7 of the registry law reads as follows: 

"No vote shall be received at any State, coitnty, town or 
city election, in this State, except at town meetings in towns 
adopting the township organization law, if the name of the 
person offering to vote be not on the said register, made on 
Tuesday or Wednesday preceding the election, unless the per- 
son oifering to vote shall furnish to the judges of the election 
his affidavit, in writing, stating therein that he is an inhabit- 
ant of said district, and entitled to vote therein at such elec- 
tion, and prove by the oath of a householder and registered 
voter, of the district in which he offers his vote, that he 
knows such person to be an inhabitant of the district, and, if 
in any city, giving the residence of such person Avithin said 
district. The oath maybe administered by one of the judges 
or inspectors of the election, at the polls where the vote shall 
be offered, or by any other person authorized to administer 
oaths, but no person shall be authorized to receive compensa- 
tion for administering the oath. Said oath shall be preserved 
and filed in the office of the town or city clerk, or in case 
there be no clerk, tiien said oath shall be filed with, and pre- 
served by, the judges or inspectors of the proper district. 
Any person may be challenged, and the same oaths shall be 
])ut as now are, or hereafter may be, prescribed by law." 
Gross' Stat. p. 257, sec. 85. 

The greater portion of the non-registered voters at the 
Milton precinct, while they filed their own affidavits, as re- 
quired by law, neglected to file the aflidavit of a householder 
and registered voter, as required by the statute. The term, 
''oath," is used in reference to the proof to be made by the 
householder; but the statute evidently contemplates that it 
Hhall be a written oat li or affidavit, because it- provides that 
"said oath .siiall be preserved and filed in the office of the 
town or city clerk." A blank form of affidavit was used in 
Milton, or rather there were two blank forms upon the same 
piece of [taper — one for the voter and one for the indorsing 



1872.] DuPage County et al. v. The People ex rd. 365 



Opinion of the Court. 



witness. To the affidavit of the voter was affixed a proper 
jurat by a magistrate, but to the affidavit of the witness was 
affixed only his own signature, without, in most cases, any 
jurat of an officer, showing the witness to have been sworn. 

Here is an irregularity, the effect of which, unlike the other 
case we have been considering, is fixed by the legislature 
itself. It is said "no vote shall be received" unless these 
affidavits are furnished. There is no room left for construc- 
tion. 

This law was before this court, in the case of Bylery. Asher^ 
47 111. 101 ; and it was there held that the judges of the elec- 
tion acted properly in refusing to receive a ballot from a per- 
son desiring to vote, who was not registered, and had not filed 
the affidavit of a witness in connection with his own. The 
question whether such votes, having been received by the 
judges of the election, could be properly counted by the 
courts in a case pending before them, and turning upon the 
result of the election, was considered very fully in State v. 
Hilmantel, 21 Wis. 566, and it was held the votes could not 
be counted. In that case the distinction is drawn between 
the failure of the voter to qualify himself and a failure on 
the part of the officers to observe some requirement of the 
law as to the manner of conducting an election. 

In the case before us, however, it appears, from the evi- 
dence, that at least a part of these voters not only made their 
own affidavits, but procured the requisite affidavit to be 
signed and sworn to by the proper witnesses; but the magis- 
trates who took the affidavits, while affixing the proper jurat 
to the first affidavit, neglected to do so as to the second. The 
voter had, in fact, made the proof required by the law, and 
the judges of the election accepted the evidence offered, 
although not properly authenticated. It may be that they 
considered thejWa^ of the magistrate as applying to both the 
affidavit of the voter and his witness. The record is so made 
up that we can not tell whether they were justified in doing 
this or not; but as the case must be reversed for the errors 



366 R., R. I. & St. L. R. R. Co. v. Heflin. [Sept. T., 

Syllabus. 

assigned by the appellants, we will only say, in regard to the 
vote in Milton township, that if the jurat of the magistrate 
can not properly be applied to both affidavits, then the appel- 
lants should be permitted to prove that the voters in question 
were, in fact, legal voters, and that the affidavits filed by 
them were, in fact, sworn to not only by them, but by the 
witnesses required by the statute. This will do no violence 
to the statute, because the object of the evidence will be to 
show that it was, in substance, obeyed, and it will certainly 
enable the court to decide this case upon its merits. To per- 
mit this proof, is like allowing an order of court to be made 
7iuncp.ro tunc — an expedient sometimes resorted to by courts, 
in order to show the actual fact and prevent a defeat of jus- 
tice. 

The decree of the circuit court is reversed and tlie case 
remanded, with leave to both parties to take further evi- 
dence. 

Deci'ee reversed. 



RocKFORD, Rock Island and St. Louis Railroad Co. 

V. 

Archibald T. Hkflin. 

1. CoNBTRDCTiON OP KKMEDiAi, STATUTES — of the rule in regard to. 
Wlicre the Innguajirc of ix remedial statute is doubtful, or will bear two 
constructions, in promotion of the object of the general assembly tho 
courts will give it such an interpretation as will l)est promote the remedy 
intended. 

2. Railroads — liability of, to fence tlieir tracks — construction of tlie stat- 
ute in regard to. Hy a proper construction of the statute requiring rail- 
road companies to fence their tracks within six months after the road is 
open for use, the companies are liable, under the statirte, if thcj" fail to fence 



1872.J R., R. I. & St. L. R. R. Co. v. Heflin. 367 

Opiuiou of the Court. 

■within six months after they begin to run trains on the track for construc- 
tion purposes. 

3. Nor does the fact that the road is still under the control of the con- 
tractors change the liability of the company in that regard. 

4. New trial — excessive damages. An action against a railroad com- 
pany for injury to stock occasioned by the negligence of the defendant, 
being in tort and sounding in damages, if the finding of the jury in such 
case is slightly in advance of what the court would have assessed the dam- 
ages, still the verdict will not, for such reason, be disturbed. 

Appeal from the Circuit Court of Warren county ; the Hon. 
Arthur A. Smith, Judge, presiding. 

This was an action brought by Hefljn against the railroad 
company, to recover damages for the killing of a cow belong- 
ing to the plaintiff, on defendant's road. A trial resulted in 
a verdict in favor of the plaintiff, upon which the court ren- 
dered judgment. The company appealed. 

Messrs. Stewart & Phelps, for the appellant. 

Mr. William Marshai>l, for the appellee. 

Mr. Justice Walker delivered the opinion of the Court: 

It is first urged, that the evidence fails to show that the 
road had been open for use six months before the animal was 
killed, and that for the want of such proof the judgment of 
the court below should be revei'sed. 

The evidence does show that the track had been laid from 
the citv of Monmouth to and beyond the point where the in- 
jury occurred, and construction trains and several freight 
trains with freight had been run over the road more than six 
months before the animal was killed, and it was not unusual 
to carrv passengers on their trains, and to charge them fare, 
more than six months before that time. From the time when 
the track was first laid, construction trains were constantly 
run, and the road was thus open to use. • 



368 R., E. I. & St. L. R. R. Co. v. Heflix. [Sept. T., 

Opinion of the Court. 

The statute only declares that the road shall be open for 
use. It does not require it to be open to public or general use. 
Now this road was not only open, but was being constantly 
used for more than six months previous to the destruction of 
the cow. 

The statute is remedial in its character, and where the lan- 
guage of such a statute is doubtful, or will bear two con- 
structions, in promotion of the object of the general assembly 
the courts will give such an interpretation as to best promote 
the remedy. We can not suppose that the general assembly 
could have intended to postpone the remedy for months, or it 
may be years, after the company have constructed their track, 
and subject the citizen to all the evils intended to be removed, 
simply because the company have failed to fully equip their 
road, establish depots, ticket agents, time tables, and the va- 
rious officers and appliances incident to a well equipped road. 
The danger may be as great and the injury as grave when the 
road is only used by the company and its employees whilst 
being constructed, as when regularly carrying passengers and 
freight. 

The reason for the commencement of the compu,tation of 
the time when the company begins to run its trains on the 
track for construction purposes, is the same as when the road 
is fully open for general business. This we think a fair and 
reasonable construction of our statute. I 

It is, however, urged that the road and the trains used in 
its construction were in the hands and under the control of the 
contractors to build the road until within less than six months 
of the occurrence complained of by appellee, and ibr tiu\t rea- 
son the company were not liable to fence ; that the duty only 
attached at the expiration of six months after the road was 
turned over by the contractors to the company. 

It has been held by this court that contractors for the con- 
struction of a railroad are the agents of the company that em- 
ploys them. Chicago, St. Paul and Fond du Lac R. R. v. McCar- 
thy, 20 111. 385; aiid the same rule is announced in the case 






1872.] E., R. I. & St. L. R R. Co. v. HeflixV. 369 

Opinion of the Court. 

of Gardner V. Snuth, 7 Mich. 410; and this court has also 
held that, where a railroad company leases its road or its cars 
to others, such lessees become the agents of the company, and 
it is liable for all acts of negligence by the lessees. Ill' 
Cent. R. R. v. Finnegan, 21 111. 648; and the same doctrine 
is announced in Bay City and East Saginaiv R. R. Co. v. Austin^ 
21 Mich. 390. 

Where a railroad company owes a duty to the public, it 
can not escape its performance by leasing its road, or by 
placing it in the control of others. But if this were not so, 
the company had its chief engineer in charge of the work 
as it was being constructed. 

But, aside from the statute, we are not prepared to say that 
the evidence fails to show such negligence as renders them 
liable at common law. Appellee was exercising his rights in 
permitting the cow to run in his own field, and it was not his 
duty to fence the sides of the track. 

It, we think, is fairly inferable from the evidence that, had 
the engine driver been on the lookout, he could have seen the 
danger in time to have stopped the train and prevented the 
injury. 

Because the company had opened appellee's field, and laid 
its track through it, and even if the company was under 
no obligations to fence, it does not follow that it is ab- 
solved from all reasonable care, or that the employees or agents 
of the company may recklessly destroy the property of indi- 
viduals. 

The evidence fully sustains the verdict, and the question of 
the measure of damages was for the jury, and we are satisfied 
with their finding. Although it maybe the duty of the own- 
er of stock injured or killed under such circumstances to ren- 
der it useful as far as practicable, still, the action being in 
tort, and sounding in damages, we will not reverse, even if 
the finding is slightly larger than we should have given had 
we assessed them. 

24 — 6oTH IiJ.. 



370 Thompson v. Force. [Sept. T., 

SyllabxTS. 

There was evidence strongly tending to show that the cow 
was not fit for beef, and we presume it would be mangled 
and bruised, as it no doubt was, by the engine, even had it 
been otherwise in proper condition. And even if the jury 
failed to deduct the value of a few pounds of tallow that 
might have been saved by expending perhaps its value in pre- 
serving it, no court would be warranted in reversing for that 
cause. 

No error is pei-ceived in the instructions of the court. On 
the entire record, we think justice has been done, and the 
judgment of the court below is affirmed. 

Judgment affii^ied. 



James Thompson 



Php]Be Force. 

1. Malicious prosecution — malice inferred from want of probable cauS^ 
"Where the defendant commenced a criminal prosecution of the plaintifln 
for a breach of the peace in a distant town from that in which the plaia- 
titf resided, in which she appeared and gave bail, but she was finally dis-- 
charged, and where the whole record in a suit by the plaintift" for ma-i 
licious prosecution showed there was no probable cause : Held, from the 
fact of there being no probable cause, that malice might be inferred. 

2. Instuuctions — lengthy and argumentative. It is not error to refuse ■ 
an instruction, although it contains some good law, -where it is of grerfi 
length, and is rather an argument of counsel on the whole case than an ili»r: 
struction. 

3. Emion— /i(>< nlwnyi^ a ground for reversal. Although there maybe' 
some inaccuracies in the instructions, yet if. upon the whole, the case was 
fairly put to the jury, and tliis court can see that if the cause was submH, 
led to another jury tlie same or a larger verdict would be the result, it 
will not reverse the judgment on the appeal of the defendant. 



1872.] Thompson v. Foece. 371 

Opinion of the Court. 

Appeal from the Circuit Court of Kuox county ; the Hon. 
Arthue a. Smith, Judge, presiding. 

Messrs. Willoughby & Grant, for the appellant. 

Messrs. Craig & Harvey, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court: 

This was an action on the case, in the Knox circuit court, 
for a malicious prosecution, which resulted in a verdict for 
the plaintiff for one hundred dollars. The court rendered 
judgment on the verdict, to reverse which the defendant ap- 
peals. 

The prosecution, commenced by the defendant before a 
magistrate, was for a breach of the peace, from which the 
plaintiff was discharged. 

In looking over the whole record, we are satisfied appellant 
had no cause whatever for prosecuting the plaintiff, and, hav- 
ing no probable cause, malice may be inferred. Israel v. 
Brooks, 23 111. 575; Ross y. Innis, 35 ib. 487; Chapman v. 
Cav;rey, 50 ib. 512. 

As from evidence of bad feeling, if not of malice, appellant 
made his complaint before a magistrate in a distant town, be- 
fore whom appellee was compelled to appear, giving bail 
therefor in the sum of one thousand dollars. Though not 
actually in the personal custody of the officer, she was in legal 
custody. 

There was a bad feeling between the parties, as there will 
be sometimes between near neighbors, as they were, and ap- 
pellant should not have included appellee and her daughter- 
in-law in the complaint, Briggs Sornberger being the only 
guilty partv. It was natural his mother and wife, seeing him 
in hot contest with appellant, should have rushed to his as- 
sistance. 

There may be some inaccuracies in the instructions, but 
upon the whole, the case was fairly put to the jury, and if it 



372 YuNDT V. The People. [Sept. T., 

Syllabus. 

should be again submitted to another jury, on the same tes- 
timony, the same or a larger verdict would be the result. 

We desire to say, if appellant's first instruction, which the 
court refused, contains some good law, as it should, being 
spread over three pages of the abstract, the court did right in. 
refusing it, as it is rather an argumentof counsel on the whole 
case than an instruction. Such form of instruction was con- 
demned by this court in Merritt v. Mcrritt, 20 111. 80. 

We do not believe a different verdict would be rendered if 

the cause was again tried. We think substantial justice has 

been done by the verdict and judgment, and see no reason for 

reversing it. 

The judgment must be affirmed. 

Judgment ajii-med. 



John S. Yundt 



The People of the State of Illinois. 

1. CRiMrsAL LAW — record must slww tliM indictment rcas properly re-' ■ 
turned into court. Where the record certified to this court fails to show 
that the indictment, upon wliich a conviction was had, was ever presented 
by tlie grand jurors in open court, the defect is fatal, and the judgment' 
•will be reversed. 

2. Same — copy of indictment and list of icitnesses before trial, and pita. 
Where the record, in a criminal case for manslaughter, failed to show thai 
the defendant was furnished with a copy of tlie indictment and a list of 
the witnesses, and required to plead before trial: Held, that the proceed- 
ing was irregular. 

3. Same — arraignment and plea. Where the record of the trial of one 
charged with a felony failed to show that the defendant was arraigned oi 
any plea filed: iTcW, that there was no issue to try, and that the part} 
convicted in such a case could not properly be sentenced. 



1872.] YuxDT V. The People. 373 

Opinion of the Court. 

4. Manslaughter — death caused by an abortion. Where a defendant 
produced an abortion upon a female who was quick with child, and a 
fatal sickness ensued in consequence of the unlawful act, which resulted 
in the death of the female : Held, that the defendant was guilty of man- 
slaughter. 

i 

Writ of Error to the Circuit Court of DuPage county; 

the Hon. Silvanus Wilcox, Judge, presiding. 

Mr. H. F. Valette, and Mr. John YanArman, for the 
plaintiff in error. 

Mr. Justice Scott delivered the opinion of the Court: 

At the March term, 1870, of the DuPage circuit court, 
John S. Yundt, plaintiff in error, was indicted for the crime 
of manslaughter, in unlawfully causing the death of one Mary 
Ann Hartrunft. 

It is alleged in the indictment that the deceased was 
"pregnant and quick with child," and the accused, by the 
unlawful act of producing an abortion on her person, with a 
sharp instrument which he used for that purpose, caused a 
sickness to ensue, from which she subsequently died, and so 

; the grand jurors present that he is guilty of manslaughter, in 

j causing her death in the manner alleged. 

The cause was tried at the October term, 1872, and plain- 

!j tiff in error was found guilty, and sentenced to the peniten- 

j tiary for the period of three years. 

I Numerous causes are assigned for error on the record. The 

i first and second in series we deem fatal to the present convic- 
tion, viz: first, that the record does not show that the indict- 
ment was presented by the grand jurors in open court, and 

|no plea was filed; and second, that defendant was not ar- 

Iraigned. 

The record is certified by the clerk to be complete, and his 

lattestation imports verity. It nowhere appears, in the record 
Isent up to this court, that the indictment was ever presented 
jby the grand jurors in open court, as the law requires. It is 



374 YuNDT V. The People. [Sept. T., 

Opinion of the Court. 

fatally defective in this regard. All that appears from the 
record is that the indictment was found among the files of the 
cause. This is insufficient. This question has been so re- 
peatedly decided by this court that it is not now necessary 
to discuss it anew. The objection was held to be fatal in the 
following cases: Gardner v. The People, 3 Scam. 85; Raincy 
V. Tlie People, 3 Gilni. 71 ; Gardner v. The People, 20 111. 430. 

Again, it does not appear from the record that the prisoner 
was furnished with a copy of the indictment and a list of the 
witnesses, and required to plead, before he was placed on trial. 
This was irregular, and it was so held in the case of JIcKoi- 
ney v. The People, 2 Gilm. 540. 

A trial was had, when, in fact, no plea of any kind was 
ever filed in the cause, so far as this record discloses. On 
the authority of Johnson v. The People, 22 111. 314, this was 
error. It was there held that, without an issue, there could 
be nothing to try, and the party convicted could not be i)rop- 
erly sentenced. This error can be corrected, and the accused 
may be arraigned and required to plead before he is again 
placed on trial. 

It is assigned for error that the court erred in refusing to 
give the 13th instruction for plaintiif in error, which raises 
the question whether it is an unlawful act to produce, with 
the consent of the woman, an abortion, when she is not what 
is commonly called "quick with child." 

Under the indictment in this case, we do not deem the ob- 
jection well taken. The indictment is for manslaughter, and 
not lor producing an abortion, under the common law or un- 
der the statute, 'i'he allegation is that the deceased was 
'■pregnant and (juiek with child." If she was pregnant, and 
the accused unlawlully produced an abortion, and a sickness 
ensued in consequence of the unlawful act, which resulted iu 
deatii, no reason is perceived why it would not constituti' tlie 
crime of manslaughter. 

in view of I he character of the errors that appear in tiiis ■ 
record, we can not relVain from admonishing prosecuting, 



1872.] Smith, etc. v. The People ex rel. 375 

Syllabus. 

attorneys throughout the State that they can not be too care- 
ful to see that the essential forms required by law in the con- 
duct of criminal trials should be observed and the record 
correctly made. A substantial compliance with the forms 
prescribed by the law can not be dispensed with. It is error 
to omit them, and we are compelled to reverse for the non- 
observance, no matter how guilty the party charged may be. 

It is more than probable that, in this case, the indictment 
was presented in open court; but, because the fact does not 
appear in the record, we are compelled to reverse the cause, 
without looking into the evidence to see whether the accused 
is guilty or not. 

For the reasons indicated, the judgment is reversed and the 

cause remanded. 

Judgment reversed. 



Benjamin N. Smith, County Judge, etc. 



The People ex re/. S. K. Bartholomew. 

1. Paupers in McHenry county — whether a town or county charge. The 
act of February 10, 1853, entitled " An act to provide for the support of 
paupers in Bureau and McHenry counties," having been adopted in the 
latter county many years ago, whereby paupers were made a township 
charge, is not repealed by the seventh section of the act of April 19, 1869, 
entitled " An act to amend chapter 50 of the Revised Statutes, entitled 
♦ Idiots and Lunatics,' and extend the provisions thereof to habitual drunk- 
ards." 

2. Lunatics and insane persons — statute relating to, construed. The 
seventh section of the act of April 19, 1869, amendatory of the chapter of 
the Revised Statutes, entitled " Idiots and Lunatics," which provides that 
overseers of the poor in every county shall take charge of the body of any 



376 Smith, etc. v. The People ex rel. [Sept. T., 

Opinion of the Court. 

person so insane, etc., and shall have power to confine him, and shall com- 
fortably support him and make an account thereof and return the same to 
the county court, whose duty it shall be to make an order on the county 
treasurer to paj' the same, was intended to apply only to the insane, luna- 
tics, etc., mentioned in the first section as having an estate, and who, after 
due service of process, have been found by a jury to be such, as otherwise 
the same would be unconstitutional. 

Writ of Error to the Circuit Court of jNIcHenry county ; 
the Hon. Theodore D. Murphy, Judge, presiding. 

Messrs. Joslyn & Slavin, for the plaintiff in error. 

Mr. A. B. Coon, for the defendant in error. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was a proceeding by 'mandamus, in the circuit court of 1 
McHenry county, to compel the county court of that county 
to make an order requiring tiie county treasurer to pay rela- 
tor tlie amount of an account returned to such county court 
by him as supervisor and ex officio overseer of the poor in and 
for the town of Coral in said county, and which account ac- 
crued for the care, support and maintenance by such overseer 
of one Winifred Dougherty, a resident of said town, and de- 
scribed in the alternative writ as "an insane pauper." 

There was a demurrer to the alternative writ, which was 
overruled by the court, and the respondent electing to abide 
by the demurrer, judgment was given for relator, and the case 
brought here by writ of error. The question is. whether this 
charge should be borne by the town of Coral, where the pau- 
per resided, or by tiie county. 

It was admitted by the parties that the provisions of the 
act of February 10, 1853, entitled " An act to provide for the 
support of paupers in Bureau and McHenry counties," had 
been adopted in the latter county more than ten years before 
these proceedings, and ever since acted upon by the several 
townships in the county. 



1872.] Smith, etc. v. The People ex rel. 377 

Opinion of the Court. 

The third section of the act (Laws 1853, p. 262,) provides, 
"that in case separate township support shall be adopted in 
said county, agreeably to the provisions of the first section of 
this act, then the overseers of the poor of the several town- 
ships aforesaid shall take charge of, maintain and support the 
poor of their respective townships in manner as is now or 
may hereafter be provided by law ; and all expenses incurred 
for such maintenance and support shall be considered a town- 
ship charge, and it shall be the duty of said overseers to pre- 
sent to the board of township auditors of their respective 
townships, at each regular meeting thereof, a true account 
of all expenditures incurred under the provisions of this act, 
which shall be audited and paid." 

The 4th section provides '^that sections 14, 15 and 16 of 
chapter 80 of the Revised Statutes, entitled 'Paupers,' shall 
apply to and operate as between the several townships of said 
county in the same manner as they do between the several 
counties of this State," etc. 

An act was passed April 19, 1869, entitled ''An act to amend 
chapter 50 of the Revised Statutes, entitled ' Idiots and Lu- 
natics/ and extend the provisions thereof to habitual drunk- 
ards." 

The body of the act is in exact conformity with what is ex- 
pressed in the title. 

The first section amends the first section of chapter 50, 
which provided for the circuit court ordering a jury, where 
any idiot, lunatic or distracted person has any estate, real or 
personal, to ascertain the fact of idiocy or lunacy by super- 
adding the case of an habitual drunkard, and the appointment 
of a conservator, as in the case of an idiot, lunatic or dis- 
tracted person. 

Tlie second section provides for the conservator's bond ; the 
third relates to the issuing and service of summons upon the 
alleged idiot, lunatic or drunkard ; the fourth and fifth pre- 
scribe the powers and duties of conservators; the sixth, that 
they may sue and be sued. Then the seventh, which is 



378 Smith, etc. v. The People ex rel. [Sept. T., 

Opinion of the Court. 

almost a literal copy of the sixth section of chapter 50, is as 
follows: ''Overseers of the poor in every county shall take 
charge of the body of any person so insane, lunatic or dis- 
tracted, and shall have power to confine him or her, and shall 
comfortably support such person, and make an account thereof 
and return the same to the county court, whose duty it shall 
be to make an order requiring the treasurer of said county to 
pay the same out of any money in the treasury of said county 
not otiierwise appropriated." 

The eighth section avoids all contracts made with such 
idiots, lunatics, insane or distracted persons or habitual drunk- 
ards, after the verdict of the jury. The ninth makes all bar- 
tering and trading with them, by which any valuable thing 
is obtained, swindling, and visited with the same penalties. 

The tenth and eleventh provide for the restoration of prop- 
erty and removal of disabilities, when the insane person is 
restored to reason, and the drunkard reformed, and which 
fact is also to be determined by a jury. The twelfth section 
declares that "all acts or parts of acts in conflict with the 
provisions of this act are hereby repealed." 

Now it is insisted, on behalf of the relator, that the seventh 
section is in conflict with the provisions of the special act of 
1853, relating to paupers, and therefore such special act is 
thereby repealed. 

The special act for McHenry county has been expressly 
adopted by the voters thereof, and acted upon for many years. 
It relates to town paupers; provides for their support by the 
towns in which they reside. It makes no distinction between 
.sane and insane paupers. The act of 18Git makes no refer- 
ence to paupers. The subject nuitter is confined to idiots, in- 
sane, lunatic, distracted persons and habitual dnmkarils. who 
possess an estate, real or personal, which they are unfit to 
manage. 

From tlie language of the seventh section and context, it is 
clear that the legislature intended that section to apply only 
to the insane, lunatic and distracted persons mentioned in the 



1872.J EscHERicK V. Traver. 379 

Syllabus. 

first section as having an estate, and who, after due service of 
process, had been found by a jury to be such. We must give 
it that construction, or hold that the legislature exceeded its 
constitutional power. An act which purported to confer upon 
overseers of the poor, or any other officers, the arbitrary and 
dangerous power of taking and confining, in any place of 
their own choosing/ the body of any person in the county, 
whom they, in their judgment, might deem insane, lunatic or 
distracted, Avitliout any trial or other legal proceeding by 
which the fact could be judicially ascertained, would be in 
derogation of the rights of civil liberty guaranteed by the 
constitution. 

In this view, there is no conflict between the two acts; 
therefore, the judgment of the court below must be reversed. 

Judgment 7'eversed. 



Henry L. Escherick 

V. 

Michael Travek. 

1. Ejectment — evidence of fraudulent representations to defeat recovery. 
Fraudulent representations made to induce the execution of a deed, can 
not be admitted to defeat a recovery in ejectment, where the representa- 
tions relate merely to the nature or value of the land. 

2. Same — what sort of fraud may be slumn to avoid deed at law. Fraud 
and circumvention used in the procurement of a deed, or the fact that it 
was executed upon the belief that it was another paper, or that it was 
misread and its contents falsely stated, may be proved in an action of 
ejectment, but the consideration is not an element of inquiry. 

3. Same — legal title must prevail over mere equities. As a general rule, 
in an action of ejectment, a court of law will not go behind the naked 
legal title. 



380 EscHEKicK V. Traver. [Sept. T,, 

Statement of the case. 

4. Fraud — in what case available as a defense at law. In a suit upon 
a simple contract, fraud is a good defense at law, but it is not generally 
pleadable in bar when the action is founded on a specialty. 

Appeal from the Superior Court of Cook county; the Hon. 
Joseph E. Gary, Judge, presiding. 

This was an action of ejectment, by the appellee against the 
appellant. The plaintiff below introduced in evidence a deed 
from the defendant for the premises in controversy, to him- 
self, and proved that the defendant was in possession of the 
same. To avoid this deed and defeat a recovery, the defend- 
ant was called as a witness, and it was proposed to prove 
by him that he was induced to make and deliver the deed by 
means of representations made by the plaintiff that the Iowa 
lands, which formed the main consideration for defendant's 
deed, were good rolling prairie lands, well adapted to farming 
purposes, and worth §20 per acre ; that said lands were situ- 
ated within eigiit miles of Mason City; that there was a rail- 
road in ))rocess of construction, located very near to the same; 
and that such representations were untrue, false and fraudu- 
lent, and made by the plaintiff with a design to cheat and 
defraud the defendant; and that immediately upon the dis- 
covery of the fact that such representations were untrue, false 
and fraudulent, the defendant sought to rescind the trade, 
and offered to re-convey to the plaintiff .said Iowa lands, and 
restore the money paid. 

To all of wliich the plaintiff objected, which objection the 
court sustained, and decided that such evidence was incompe- 
tent and inadmissible. The defendant excepted to the ruling. 
There was a verdict and judgment for the plaintiff, from 
which the defendant a])pealed. 

Messrs. Bakbkij & Lockner, for the appellant. 

Messrs. Higgins, Swett & Quiqg, for the appellee. 



1872.] EscHERicK V. Travek. 381 

Opinion of the Court. 

Mr. Justice Thornton delivered the opinion of the Court : 

Can fraudulent representations, made to induce the execu- 
tion of a deed, be admitted to defeat a recovery in ejectment, 
where the representations relate merely to the nature or value 
of the land? 

Two distinct systems of jurisprudence prevail in this State, 
— one of equity and one of law. They have not been blended, 
as in some of the States; and the courts can not abolish the 
distinction, however technical it may be. This power belongs 
to the legislative department. 

While, in a suit on a simple contract, fraud is a good defense, 
it is not generally pleadable in bar when the action is founded 
on a specialty. 

Fraud and circumvention used in the procurement of the 
deed, or the fact that it was executed upon the belief that it 
was another paper, or that it was misread and its contents 
falsely stated, may be proved in an action of ejectment; but 
the consideration is not an element of inquiry. 

Upon the trial of an action of ejectment, the only plea is, not 
guilty, that the party does not unlawfully withhold the prem- 
ises ; and no notice is given that fraudulent representations 
will be urged as a defense. The sudden springing of such de- 
fense upon the trial would operate as a surprise, and tend to 
mar the system of common law pleading, which intends that a 
party must have some notice of the questions which must be 
met. 

As a general rule, in an action of ejectment a court of law 
will not go behind the naked legal title. For this course 
there is good reason. If the evidence offered had been admit- 
ted and the fraud found, the court could have done nothing 
but declare the deed a nullity. It could not have placed the 
parties in their original position and compelled a restoration 
of the money paid, and a reconveyance of the lands granted in 
exchange. Equity could not have been administered as it would 
have been in a court of chancery, to which jurisdiction of 
such questions rightfully pertains. 



382 EscHERiCK V. Teaver. [Sept. T., 

Opinion of the Court. 

The case of Reece v. Allen, 5 Oilman, 236, is an express 
authority in favor of the view we have taken. It was held 
that, even if the grantee of the trustee took the title in fraud 
of the rights of the parties, a court of law ■would not inquire 
into the facts, and that a court of chancery was the proper 
forum for the settlement of such questions. 

In Wales v. Boguc, 31 111. 468, the court say: " In this trial 
(an action of ejectment) legal rights alone can be considered." 

In Jackson ex dem. Church v. Hills, 8 Cowen, 290, the 
plaintiff claimed to recover upon a demise from the defendant 
to the lessor of the plaintiff. The defendant offei-ed to show 
the demise fraudulent. It was held that it could not be im- 
peached at law on the ground of fraud or misrepresentation 
as to the consideration or the motives of its execution. 

In Osterhout v. Shoemaker, 3 Hill, 513, ejectment was 
brought. The evidence tended to make out fraud in relation 
to the consideration, and the court held that the deed could 
not be impeached for fraud in the consideration. 

To the same effect is the case of Taylor \.King, 6 Munford, 
366, and many other cases might be cited. 

We have been referred to Bogers v. Brent, 5 Gilman, 573, 
as authority in favor of the admissibility, of the evidence. 
The question in the case was, which was the better title, — 
the patent title, or the title acquired under the sheriff's sale 
and deed? The court below excluded the evidence of the 
defendant, and tiiis was held to be error. When the court 
decided tliat all the interest of Samuel Bowman had become 
vested in the purchaser at the sheriff's sale, before the assign- 
ment to Jesse Jjowman, there was an end of the case, and the 
elaborate discussion of the question of fraud was unneces- 
sary. 

The true and safer rule is, to maintain the separate juris- 
diction of law and e(juity, and let each act in its respective 
Bj)here. 

We think the evidence was properly excluded, and the 
judgment is atlirined. 

Judgment ajiitned. 



18T2.] Shepard r. Brewer d a^. 

Opinion of the Court. 



Amos D. Shepard 

V. 

Wade Brewer et al. 

1. Homestead — right of infants in, lost by the abandonment of parent. 
Although infant children have rights in the homestead, they are necessarily 
under the control of their parents during the joint lives of the latter; and 
as the mother becomes the head , of the family upon the death of the 
father, her abandonment of the homestead will deprive such children of 
their homestead right. 

3. Same— /ac^s showing an abandonment of Where the widow of one 
who had mortgaged his homestead without releasing the right, some time 
after the death of her husband, went to Nevada territory, leaving the 
premises in charge of a son-in-law to rent for her infant children whom 
she left behind ; was there married, and lived with her husband for eight 
montlis in Nevada, when she returned, and in about two years afterwards 
executed a quit claim deed to her son-in-law, which was inoperative to 
pass title because her husband had not joined in its execution, and the 
grantee took possession and made improvements on the premises exceed- 
ing the original value of the projierty : Held, that while her deed was in- 
valid for the reason stated, yet its execution taken in connection with the 
other facts showed a clear intention to abandon the homestead, and must 
be held with the other facts to constitute an abandonment of it. 

3. The homestead right will be lost by a voluntary abandonment with- 
out an animxis revertendi. 

Appeal from the Circuit Court of La Salle county ; the 
Hon. Charles H. Oilman, Judge, presiding. 

Messrs. Eldridge & Lewis, for the appellants. 

Messrs. Dickey, Boyle & Rickolson, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was a bill in equity, brought by Shepard, the appel- 
lant, to foreclose two mortgages upon a lot in the village of 
Leland, in La Salle county, executed by William H. Blair 
and Sarah Blair, his wife, one on the 12th of February, 1858, 



384 Shepard 1-. BiiEWKR ei al [Sept. T., 

Opinion of the Court. 

to James L. Chapman & Co., to secure the payment of §81 ; 
the ot'ner on the 20th of January, 1860, to William O. Craig, 
to secure the payment of §112. Shepard is the assignee of 
the mortgages. Tlie mortgaged premises were of the value 
of about §400, as the proof shows. The homestead right was 
not released in either mortgage. That right is set up in re- 
sistance of the foreclosure; and the question presented on the 
record is, whether there has been an abandonment of the 
homestead. 

The mortgagor, Blair, died in 1860, leaving Sarah Blair, 
his widow, and several children, three of whom were infants 
at the time of the filing of this bill. February 23. 1870. The 
evidence shows that the widow and her family did not reside 
on the property after 1860. Shepard, who married one of the 
daughters, lived on the premises several months in 1864 or 
1865. 

In 1863, Mrs. Blair, the widow, went to Nevada territory, 
leaving her children behind, and leaving the premises in 
charge of a son-in-law to rent them for the support of her 
infant children. In 1864, Mrs. Blair married one Wade 
Brewer in Nevada territory, and according to her own testi- 
mony lived with liim there eight months, and no longer, 
during which time they kept house. In 1864, she returned 
to Illinois. On the 16th of June, 1866, she, together with 
her married daughter, Elnora Richolson, executed a quit claim 
deed of the premises to Shepard in consideration of one hun- 
dred dollars ])aid by him. Soon after, Mrs. Brewer left for 
Colorado territory, where she remained nearly two years, and 
then returned from Colorado to Illinois in 1868. After the 
execution of the quit claim deed, Shepard took possession of 
the premises, and put improvements thereon to more than the 
original valuf' of the property, and also bought in the afore- 
said mortgages. 

A question is made as to the character of the transaction 
between N[rs. lirewer and Shej)ard, in the execution of the 
quit claim deed by iier, ami his payment of §100. 



1872.] Shepaed v. Brewer et al. 385 

Opinion of the Court. 

It is claimed on her part to have been but a loan of §100 
from Shepard and that the deed was given onlv as security 
for its repayment; while he claims that it was an absolute 
purchase of all her interest in the property for the sum of 
$100, which he paid for it. 

In proof of the transaction being a loan, the facts are relied 
upon that Mrs. Brewer executed a lease of the premises to 
Shepard, bearing date, June 1, 1866, for ten years from that 
time, for the rent of $100, and that she remitted from Colorado 
to Shepard $90. 

The evidence satisfactorily explains this lease to us as being 
but a mere form — that it was resorted to, to disguise the trans- 
action from the mortgagees holding these tAvo outstanding 
mortgages, and create the belief on their part that the home- 
stead right was still retained, and thereby induce them to re- 
frain from foreclosing their mortgages. And we think from 
the evidence the $90 was remitted, not toward the payment of 
any loan, but for the support of the infant daughter of Mrs. 
Brewer, who was then living with Shepard. In view of all the 
proof, we are satisfied that Shepard purchased all the interest 
of Mrs. Brewer in the property for the sum of $100, and 
that she executed to him her quit claim deed therefor. 

Being a married woman at the time, the deed was invalid 
for the purpose of passing title, yet its execution, taken in 
connection with the other evidence, shows a clear intention 
to abandon the homestead, and must be held with the other 
facts to constitute an abandonment of it. 

The homestead right is lost by a voluntary abandonment 
without the animus revertendi. 

In Brown v. Coon, 36 111. 243, this court held that where 
the homestead is conveyed, without a release of the homestead 
right under the statute, and actual possession give tothegrantee 
by the voluntary withdrawal of the husband and wife, the 
homestead, as to such grantee, is abandoned ; and it was also 
there held that, although the infant children have rights in the 
homestead, these rights must necessarily be under the control of 
25 — 65th III. 



386 Price v. Blackmore et al. [Sept. T., 

Syllabus. 

the parents during the joint lives of the latter; and in Wright 
V. Dunning, 46 id. 271, and Buck v. Conlogue, 49 id. 391, it 
was held that where, upon the death of the father, the mother 
becomes the head of the family, she, by abandoning the home- 
stead, would deprive these children of the homestead right. 
The decree must be reversed and the cause remanded for 
further proceedings in conformity with this opinion. 

Decree reversed. 



Hiram Pbice 

V. 

Marcus H. Blackmore et al. 

1. Chancery — relief granted imist be consistent with the frame of bill 
und the equity of the case, as shown by the proofs. Where the general IVanie 
of a bill and tlie proofs show that the complainant is entitled to the reliif 
named first in the prayer, it Avill not be error to refuse him Hie allernative 
relief prayed for "which is inconsistent with the allegations of his bill and 
the evidence. 

2. Same — defendant can not obtain affiiinative relief except on cross-bill. 
Two mortgagees, on account of irregularities in the proceeding to fore- 
close, agreed to procure a conveyance from the mortgagor, for their joint 
benefit, in order to obviate the supposed defects in the ])roceedings, and 
one of them procured a deed to himself, and refused to convey (ine-h:ilf 
of the title thus acquired to the other. The latter filed his bill to comprl 
the conveyance, and the court decreed that complainant pay defend;nit 
one-luiUof the expense incurred in procuring such title, and awarded exe- 
cution, in favor of defendant, for its collection : Held, that the court crn d 
in awarding execution against complainant, as the defendant had not filed 
any cross-bill seeking for affirmative relief. 

3. Same — costs. Where the complainant and defendant, having a joint 
interest or equitable claim to lands, agreed to procure a deed on their joint 
account, and the defendant took the conveyance in his own name, anil de- 
nied the complaluaul's right to a conveyance until after suit, and until the 



1872.] Peice v. Blackmore et al. 387 

Statement of the case. 

evidence was taken showing the complainant's right: Held, that, in grant- 
ing relief to the complainant, it was not equitable to render a decree 
against him for costs. 

4. Interest — on relief in equity. Where two parties, having each an 
equitable claim to land, agreed to procure a conveyance from another 
party to perfect their title on joint account, each to share equally in the 
expense of procuring the same, and in the benefits, and the defendant pro- 
cured the conveyance to be made to himself, denying the right of the com- 
plainant, and refused to furnish complainant with an account of the 
expense of procuring the same, the complainant being always ready to 
pay the same : Held, on bill by complainant to compel the defendant to 
convey one-half of the title thus acquired, that a decree requiring com- 
plainant to pay interest on his half of the expense of procuring such con- 
veyance was erroneous. 

Writ of Error to the Circuit Court of Henry county; the 
Hon. Ira O. Wilkinson, Judge, presiding. 

This was a bill in chancery, by the plaintiff in error, against 
Marcus H. Blackmore, Robert Lowry, Elizabeth Lowry and 
John F. Dillon. 

The bill alleged the execution of a mortgage by Blackmore 
to complainant and Robert Lowry, to secure the payment of 
$20,000, on certain described lands, and sets forth proceedings 
to foreclose the same for the unpaid balance due, which re- 
sulted in a decree and sale of the premises to Dillon; that 
Dillon was a mere nominal purchaser for complainant and 
Lowry; that, before the attempted foreclosure, Blackmore 
conveyed, by deed, one-half his interest in the mortgaged 
lands to Eleanor B. Collins, wife of William S. Collins, who 
were not made parties to the foreclosure; that, by reason of 
mistakes in the publication of notice, the court acquired no 
jurisdiction over Blackmore, and, therefore, the proceedings 
were null and void; that, as soon as these irregularities be- 
came known, complainant and Lowry agreed to procure 
deeds, at their joint expense, from Blackmore, and Mrs. Col- 
lins and her husband, and did so procure a deed from the 
Collins; that, afterwards, Lowry procured a deed from Black- 
more to himself alone, and refused to convey any portion to 



388 Price v. Blackmore et al. [Sept T., 

Opiuiou of the Court 

Complainant; that complainant had always been ready and 
had offered to pay one-half of the expenses of procuring said 
last deed; and that complainant and Lowry were equal part- 
ners in the whole matter. The prayer was, that an account 
be taken of the expenditures of both complainant and Lowry, 
in procuring deed from Blaekmore, and a balance struck, and 
that Lowry and wife be compelled to transfer one-half of the 
interest derived by the Blaekmore deed to complainant, and 
that the mortgage be declared satisfied and the certificate of 
purchase void, and, alternatively, that the former proceedings 
be declared void and the mortgage foreclosed. 

The defendants answered, but filed no cross-bill for affirma- 
tive relief. The other material facts bearing upon the points 
decided, are stated in the opinion. 

Mr. Chaeles M. Osborn, and Mr. W. C. Goudy, for the 
plaintiif in error. 

Mr. Frank J. Crawford, for the defendants in error. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court : 

As to the main question involved in this litigation, the de- 
cree of the circuit court is, undoubtedly, correct. It gave 
to the complainant below the very relief which his original 
and amended bills both prayed and which they were framed 
to secure. The other relief, a foreclosure of the mortgage, 
was only asked in the alternative and in the event that the 
reliel' actually granted should not be given. 

The answer denied the complainant's right to relief of 
any kind, either a conveyance of an undivided half of 
the ]51ackmore interest or a foreclosure of the mortgage, 
claiming that Lowry purchased the Blaekmore interest for 
his own exclusive benefit. The proof showed that the pur- 
chase should be considered as made for the joint benefit of 
Price and Lowry, and, on the eve of the hearing, Lowry 
amended his answer, admitting that fact, and conceding the 
right of Price to a conveyance, on payment of one-half of 



IS72.J Price v. Blackmore et al. 889 

Opinion of the Court. 

the cost of procuring the deed. Then Price amended his bill, 
asking for a foreclosure. The granting of this prayer would 
have been inconsistent with the allegations of both the orig- 
inal and amended bills, and with the relief primarily asked 
therein, as well as with the evidence. The evidence showed, 
as the bill stated, that the purchase from Blackmore was for 
the common benefit of Price and Lowry, to be made at their 
joint expense; and this arrangement, which was made with 
the attornies and agents of Price, was certainly ratified by 
him when he filed his bill in this case, if not before. 

It was, however, an error in the decree to award an execu- 
tion against Price in favor of Lowry, in order to enforce pay- 
ment of one-half the costs of procuring the Blackmore title. 
Lowry was not the actor in this case. If he had desired 
' affirmative relief, by compelling payment of one-half the pur- 
\ chase money, he should have filed a cross-bill, instead of 
i! resisting the right of Price to a conveyance until all the evi- 
dence had been taken. 

Neither was it equitable to charge Price with interest on 
one-half the expenses of procuring the Blackmore title, from 
the time of procuring it until the decree. Lowry had been 

■ constantly denying the right of Price to a conveyance, and 

■ had furnished no statement of the money expended, one-half 
' of which Price had been desirous of paying. Under these cir- 
cumstances, we think interest should not have been charged. 

I We are also of opinion that the costs should have been 

I taxed against Lowry, as he had denied the right of Price to a 

conveyance until the evidence was taken. Probably the at- 

• tention of the court was not particularly called to these pru- 
' visions of the decree. We might not reverse merely for an 

erroneous ruling in regard to costs in a chancery case, but as 

• this question is raised, and as the decree must be reversed on 
other grounds, we do not wish to sanction the order as to 
costs, by passing it over in silence. 

The decree of the court below is reversed and the cause 

remanded. 

Decree reversed. 



390 McClure v. Williams. [Sept. T., 

Syllabus. 



Thomas H. McClure 



Chester K. Williams. 

1. "Witness — credibility. Where the court instructed the jury if a cer- 
tain witness wilfulh'' testified falsely to anj-^ material fact, then they were 
at liberty to disregard all his uncorroborated evidence: Held, that, while 
the instruction might have been more precise, it was not deemed such as 
to mislead, as the jury, no doubt, understood it to mean that the witness 
must have knowingly sworn to what was false. 

2. Instruction — as to efect withdrcming general issue. On the trial of 
a suit in which the defendant had withdrawn the general issue and filed 
various special pleas, the court, at the instance of the plaintiff", instructed 
the jury that, by withdrawing the general issue, the defendant admitted 
all the material averments in the declaration, without stating what thej' 
were or what was thus admitted: Held, Wmi the instruction was calculated 
to mislead the jury, and, therefore, erroneous. 

3. Same — as to burden of proof. "Where the defendant pleaded special 
pleas without the general issue, the court instructed the jury that the bur- 
den was upon the defendant to prove each of the several issues formed by 
the pleadings: Held, that the instruction was not properly- guarded, as the 
jury may have inferred from it that the defendant was bound to prove all 
his pleas by a preponderance of evidence, whereas he was entitled to 
recover if he succeeded on either one. 

4. Pleading — failure of consideration, by breach of warranty. A plea 
to an action on a promissory note averred that the consideration for §700 
of the note was the purchase of a flock of sheep, and that the plaiiitilf 
represented that they were cured and entirely free from a disease called 
the scab, which tliey jireviously had, and if not, defendant need not pay 
that sum; that said sheep were not cured and euiirely free from tliat 
disease, and that they had continued to be infected with it, and that the 
flock of sheep were worthless and of no value: Held, that, while this pka 
■was very inartiflcially drawn, it presented facts which, if proved, consti- 
tuted a warranty of soundness and a breach, and that it was error to in- 
struct the jury to disregard such plea. 

5. And where another i)lea, similar to the one stated, except it averred 
an assurance that the sheep would recover and become well of the disease 
called the scab, was filed, upon which issue was taken: Held, that such 
plea might be regarded as setting up a warranty that the sheep would 
recover from the disease, and a breach, and that an instruction to disre- 
gard it, as presenting an immaterial issue, was erroneous. 



1872.] McCluee r. Williams. 391 

Opiniou of the Court. 

6. Immaterial issue — practice. When pleas present immaterial issues, 
the proper practice is to move to strike them from the files. 

7. "Warranty — measure of damages for breach. If sheep are sold, with 
a warranty that they have entirely recovered from a disease they pre- 
viously had, or that they would recover from the same, and such warranty 
is broken, the purchaser, when sued upon the note given for the price, if 
he has kept the sheep, will have the right to have his damages deducted 
from the amount of the note; and the measure of those damages will be 
the diflerence in value of the property at the time the warranty was 
broken and what its value would have been had the warranty been true. 

8. Same — evidence of value proper. As the value of property, at the 
lime when a warranty of its soundness is broken, with interest, is the 
measure of the seller's recovery, it is error to refuse evidence on the part 
of the purchaser, when sued, to prove the value, where the warranty and 
a breach thereof is set up in defense, for, without such proof, the jury, on 
finding a breach of warranty, could not fix the amount of recovery, or 
say whether there should be none because the property was worthless. 

" Appeal from the Circuit Court of Stephenson county ; the 
Hon. William Brown, Judge, presiding. 

Messrs. Eustace, Barge & Dixon, and Mr. Emery A. 
Stores, for the appellant. 

Mr. J. M. Bailey, and Mr. J. I. Neff, for the appellee. 

Mr. Justice Walker delivered the opinion of the Court : 

This was an action of assumpsit, commenced by appellee 
in the circuit court of Ogle county, against appellant. The 
declaration contained a special count on a promissory note 
given by appellant for §708.75, to appellee, and the common 
counts alleging that appellant was indebted to appellee in the 
sum of $1000. To this declaration, appellant tiled the gen- 
eral issue, but it was subsequently withdrawn. Several 
special pleas were also filed, on each of which there was 
formed an issue of fact. 

Two trials were had, resulting in verdicts in favor of ap- 
pellant, but the verdicts were set aside, and new trials were 
granted. Afterwards, the venue of the case was changed to 
the circuit court of Stephenson county, where a third trial 



392 McClure v. Williams. [Sept. T., 

Opinion of the Court. 

was had, resulting in a verdict and judgment in favor of 
plaintiff, from which defendant appeals to this court. 

It is objected that the court below erred in giving appel- 
lee's first instruction. It is not liable to the criticism made 
by appellant's counsel. It says that if the witness wilfully 
testified falsely to any material fact, then the jury were at 
liberty to disregard all of his uncorroborated evidence. The 
meaning given to it by the jury, no doubt, was that he must 
have knowingly sworn to what was false. If he wilfully tes- 
tified falsely, then the falsehood must have been intentional; 
and the unobjectionable evidence referred to in the instruc- 
tion would be understood as being evidence to which the jury 
found no objection; and they, no doubt, understood the ma- 
terial fact as relating to the case. It is true, the instruction 
might have been more precise, but we do not see that it could 
have misled the jury, as given. 

The sixth instruction given for appellee was calculated to 
mislead the jury. It told them that, by withdrawing the plea 
of the general issue, the defendant admitted all the mate- 
rial averments in the declaration, without stating what they 
were. Under such an instruction, any but lawyers would be 
liable to be misled to believe that the sum claimed in the 
declaration was a very material averment. Before this in- 
struction was given, it should have been so modified as to 
have informed the jury what material averments were admit- 
ted. 

The seventh of appellee's instructions was not properlv 
guarded. From it the jury might have understood that ap- 
pellant was bound to prove all of his pleas by a preponderance 
of evidence, before he could succeed. It says: "The burden 
is upon the defendant to prove each of the several issues 
formed by the pleadings." This should have been qualified by 
informing them that if he, however, maintained, by proof, any 
one of the issues, he would be entitled to a verdict. Un- 
accompanied by any such explanation, the jury were liable to 
believe all of the issues must be found in his favor, to entitle 



1872.] McClure 1-. Williams. 893 

Opinion of the Court. 

him to a verdict ; whilst all persons in the profession know 
that if a defendant plead, and proves one plea in bar, he is 
entitled to judgment. 

The fourteenth of appellee's instructions tells the jury to 
disregard the second, third, fourth and fifth of appellant's 
pleas, as they present no defense to the action. 

The fifth plea avers that the consideration for ^700 of the 
note was the purchase of a flock of sheep, and that appellee 
represented that they were cured, and entirely free from a 
disease called the scab, which they previously had, and if not, 
that appellee need not pay that sum; and it avers that they 
were not cured, and entirely free from that disease, and that 
they had continued to be infected with it, and that the flock of 
sheep were worthless and of no value. Whilst this plea is 
very inartificially drawn, it still presented facts, and they 
were traversed, which constitute a warranty and breach. If 
proved, as averred, it would be a warranty of soundness, and 
its breach. It is true, the plea does not profess, in terms, to 
set up a warranty, but the law requires no form of words to 
constitute a warranty. In the plea, an assurance of the sound- 
ness of the sheep was averred, and the plea avers that the 
assurance was accepted and acted upon. The instruction was, 
therefore, improper, and should not have been given. 

The fifteenth of appellee's instructions directs the jury to 
disregard the sixth plea, because it did not present a material 
issue. It, like the fifth, was unskillfully drawn, but is similar 
to the fifth, only it avers an assurance that the sheep would 
recover and become well of the disease called the scab. It 
may also be regarded as a warranty that the sheep would re- 
cover from the disease, and a breach of the warranty. That 
instruction should not have been given. These pleas did not 
profess to vary the note by parol evidence, but were, in sub- 
stance, pleas of warranty. 

Had the pleas presented immaterial issues, the proper prac- 
tice would have been to strike them from the files. By 
doing so, the record becomes disincumbered of the pleas, and 



394 McClure v. Williams. [Sopt. T., 

Opinion of the Court. 

the jury are freed from examining the record to ascertain the 
facts averred in the pleas, and thus relieving the jury from 
embarrassment. By striking them out, there is no tendency 
to })rejudice the jury by telling them that such facts form no 
defense. 

If a warranty and its breach were proved, as is averred 
in the pleas, then appellant had the right to have the jury 
find the difference in the value of the property at the time 
the warranty was broken and what it would have been had 
the warranty been true, and have that sum deducted from the 
note. Appellant had the right to keep the sheep, and rely 
upon the warranty; and in doing so, he could not, on show- 
ing a breach of the warranty, be compelled to pay for the 
sheep moi'e than they were worth in their diseased condition, 
if the warranty and its breach were proved. 

After an examination of the instructions given, we are not 
prepared to say the court erred in withholding from the jury 
those that were refused on the part of appellant. Those 
given, we think, fairly presented the proper legal aspect of 
his side of the case. 

But the court erred in refusing to permit Rosentiel to an- 
swer questions as to value of the sheep, and damages, as the 
evidence was material as to the question of warranty. The 
value of the property at the time when a warranty is broken, 
with interest, is the measure of the seller's recovery when he 
sues for its value. Hence*, as a warranty and its breach were 
relied on in this case, such testimony was pertinent to that 
issue, and it should have been admitted, ^^'ithout such evi- 
dence, the jury, if they ibund there was a warranty, and its 
breach, would be wholly unable to fix the amount of recovery, 
or to say whether there should be none, because the property 
was worthless. 

Tlie judgment of the court below must be reversed and the 
cause remanded. 

Judgment reversed. 



I 



1872.] Warner v. Hale et al. 395' 

Opinion of the Court. 

Lawson S. Warner 

V. 

Franklin M. Hale et dl, 

1. Statute op frauds — agreement not to be performed within a year. 
Whether part performance takes case out of the statute. In the case of a 
verbal leasing of a dock where the contract is not to be performed within 
one year, part performance by entering into possession of the demised 
premises, and occupying them for a while, will not, in a court of law, 
take the case out of the operation of the statute of frauds, but in a suit to- 
recover rents, the contract being void, no recovery can be had upon it, but 
the plaintiff may recover for the use and occupation of the premises for 
the time they were occupied, estimating the value of the same on the 
basis of a quantum meruit. 

2. Landlord an^d tenant — when tenancy by the month is implied. Where 
a party enters into possession of premises under a verbal letting which is 
void under the statute of frauds, agreeing to paj^ rent monthly, and pays 
rent under the contract awhile, he will become a tenant from month to 
month, and as such be entitled to notice to quit. 

3. Partnership — right of one, to abandon leased premises and be exon- 
erated from paying rent thereafter Where two persons as partners enter 
into possession of premises under a lease of the ownei*, with a stipulation 
for the paj^ment of rent monthly, one of them can not withdraw without 
notice to the lessor, and thus escape liability for the rents for the time the 
premises are subsequently occupied by the other. 

Appeal from the Circuit Court of Cook County; the Hon. 
Henry Booth, Judge, presiding. 

Mr. J. W. Chickering, for the appellant. 

Mr. M. W. Robinson, for the appellees. 

Mr. Justice Breese delivered the opinion of the Court: 

This was an action originally commenced before a justice 
of the peace of Cook county, by Franklin M. Hale and George 
Snooks, as partners, against Lawson S. AVarner and C. D. 
Swartwout, as partners, and taken by the appeal of Warner to 
the circuit court; in which court a judgment Avas rendered 
against him for the amount of the plaintiffs' claim. 



396 Warner v. Hale et al. [Sept. T., 

Opinion of the Court. 

To reverse this judgment, Warner appeals to this court, 
and makes the point that the agreement under which plaintiffs 
claimed relating to an interest in land, and not to be per- 
formed within one year from the making thereof, was void by 
the statute of frauds and perjuries; and second, that he was 
not a party to the lease. 

To the first point appellees reply, that taking possession of 
the leased premises, occupying the same for their business 
purposes, and paying rent therefor, took the case out of the 
operation of this statute. 

The premises leased wei'e a dock on the Chicago rivei', and 
that the agreement was within the statute of frauds and per- 
juries is not denied. 

The cases cited by appellees to sustain their position, that 
taking possession of the premises and paying rent, do not ap- 
])ly to a case of this kind. They are cases of the sale of land 
by parol, where the purchaser pays the purchase money, entera 
into possession, and, holding under his purchase, makes val- 
uable and lasting improvements. Ifason etal. v. ^mr, 33 111. 
194, We recollect no case where this doctrine of part 
performance has been applied to a lease and in a court of law. 

The agreement being void, what remedy has the owner? 
He has none on the contract, that is certain, but for the use 
and occupation of the premises for the time they were occu- 
])iod, his remedy is ample. 

Tiie premises were demised by jiarol for one year, at a 
stipulated rent, payable monthly. Under it the lessees entered 
into possession, and paid the rent as it accrued, up to Novem- 
ber, 1870, as is claimed. The lease being void by force of 
tiie statute, they became tenants from month to month, and 
■would have been entitled to notice to quit. Frickelt v. Hitter, 
16 111. 96. 

We think the proof is sufficient to show that apj)ellant, 
witli Swartwout, entered into the possession as partners, and 
paid rent as such. 



1872,] Warner v. Hale et aJ. 397 

Opinion of the Court. 

Appellant claims, that the partnership ended and he aban- 
doned the premises on the first of October, 1870. There is 
proof tending to show that after that date, Swartwout exer- 
cised some control over the dock by offering the use of it 
to Bayley to store his boats, which he did to some extent. It 
is not shown that appellant gave any notice to appellees, that 
he bad abandoned the use of the premises, consequently they 
had a right to consider him as continuing in their occupancy 
with Swartwout, and treat him as an occupant. 

Where two persons, as partners in business, enter into pos- 
session of premises by leave of the owner, with astipulation for 
the payment of the rent monthly, we are not of opinion it would 
be justifiable for one of the partners to withdraw without 
notice to the lessor, and thus escape his liability for the rent. 
The partner withdrawing or abandoning the premises may be 
the one on whose responsibility the occupancy was permitted. 

It is a question for the jury to determine, from the evidence, 
how long the premises were occupied by these parties a& part- 
ners, or by either of them, and if they find that one of them 
occupied for a longer time than that for which they have 
paid rent, and for the months specified in the account, and. 
no notice was given the owners of an abandonment by either 
of the partners, then they should find for the plaintiffs the 
rent in arrear for such time, estimating the value of the same 
on the basis of a quantum meruit. 

With these views, the judgment must be reversed and the 
cause remanded. 

Judgment reversed. 



59S HuRLBERT V. Ellenberg. [Sept. T., 

Opinion of the Court. 



Egbert E.. Hurlbert 



Francis M. Ellenberg. 

Pleading — j)lea of agreement to dismiss suit. In a suit upon a note, the 
defendant pleaded that, since the continuance of tlie suit, at the November 
term, 1871, to wit: at the March term, 1872, there was another suit pend- 
ing, on the chancery side of the court, for the same cause of action — the 
note in controversy having been secured by a mortgage; that the defend- 
ant, by his attorney, made an agreement with the attorney of the plaintiff 
thai if the defendant would allow a decree on the mortgage, at the March 
term of the court, that he w'ould dismiss this suit; and averred that defend- 
ant did permit the plaintiff to take a decree at that term of the court: 
Ileld, that the plea was bad on demurrer, as an agreement to dismiss a suit 
can not be pleaded in bar of the action. 

Appeal from the Circuit Court of Iroquois county; the 
Hon. Charles H. Wood, Judge, presiding. 

Messrs. Roff, Doyj>e & McCuij-ough, for the appellant. 

Mr. Justice Scott delivered the opinion of the Court: 

There is but a single question presented by this record, viz: 
Was the demurrer properly sustained to the plea in bar of the 
action? 

It is averred in the plea that, since the continuance of this 
suit, at the November term, 1871, to wit: at the March term, 
1872, tiicre was another suit pending, on the chancery side 
of the court, for the .same cause of action — the note in con- 
troversy having been .secured by a mortgage — that appelhuit, 
by his attorney, made an ;igreement with the attorney of ap})el- 
lee that if ajipeliant would alU)w a decree on the mortgage, 
at the March term of the court, he would dismiss tliis suit; 
and it is further averred tiutt aj)pellant did permit appellee 
to take a decree against tlie land at that term of the court, 
wherefore he avers that the suit ought to be dismissed, and 
concludes with a verification and praver lor judgment. 



1872.] C. & N. W. R. ^y. Co. V. Ingersoll d al. 399 

Syllabus. 

The plea, by its beginning and conclusion, purports to be 
a plea in bar, and in form and substance is such ; and M^hen 
the facts stated are admitted, as they ai*e by the demurrer, to 
be true, they constitute no defense to the action. 

It was held by this court, in Christopher v. BaUinger,4:7 111. 
107, that an agreement between parties that upon compliance 
with certain conditions the suit should be dismissed, and non- 
compliance therewith, could not be pleaded in bar of the 
action; and the decision in that case is conclusive of the one 
at bar. 

The judgment is affirmed. 

Judgment affirmed. 



The Chicago & Northwestekn Railway Co. 



Gardner A. Ingersoll et al. 

1. Continuance — want of diligence. Where suit was brought Dec. 23, 
1871, and an application for a continuance was made in June, 1872, on the 
ground of the absence of a witness, formerly a resident of this State, but 
then of Baltimore, which the court below refused : Held, no error, as the 
affidavit for continuance was palpably deficient as to showing diligence. 

2. Evidence — opinion of witness. Where a witness in a suit against a 
railroad company for failing to deliver a shipment of grain in proper 
time, disclaimed all personal knowledge of the time grain was shipped, and 
did not protend to possess any peculiar knowledge as to the management 
of the defendants' road, or the running of the trains: S'eW, that it was not 
proper to permit the witness to give his opinion whether it would have 
been possible or probable, in the ordinary course of business, for the 
grain to have been placed under the control of the consignee bj'^ a given 
day. 



400 C. & N. \Y. E. W. Co. r. Ixgeesoll ei al [Sept T., 

Statement of the case. 

3. Same — "proof of loss, to admit secondary evidence. Where grain was 
shipped under a written contract, it was sliown that the station agent de- 
livered tlie same to a messenger to deliver to the general freight agent at 
Chicago, who was the proper custodian of it, and that his office where he 
kept such papers was burned, with its contents: Held, that this was not a 
sufficient foundation for the admission of secondary evidence of the con- 
tents of the written agreement. The general agent should have been called 
to show that he received it and placed it in his oflBce, and that it was there 
when the office was burned. 

4. Same — entry upon books of third party. Where a railroad companj- 
was sued for the non-delivery of grain to the consignee of the plaintifi', 
and the company defended upon the ground that they delivered the same 
to a third party with whom the consignee had grain shipped to him, de- 
livered, and that the same was burned in the great Chicago fire, the 
defendant offered in evidence an entry made in a book of such third party 
on Oct. 7, 1871, shown to have been made in the usual course of business, 
by the foreman of the receiving and weigliing department of such third 
party, as tending to show the receipt of the plaintiff's grain on that day. 
It was not pretended tliat the foreman was dead, but the ofier was based 
upon showing the entry to have been in his handwriting, and made in 
the course of his ordinary duties and as a part of the res gestw : Held, that 
the entry was proper evidence, and should have been admitted. 

Appeal from the County Court of DeKalb county; the 
Hon. Luther Lowell, Judge, presiding. 

The defendant in this case filed an affidavit for a continu- 
ance on the ground of the absence of a material witness. 
Upon the question of diligence the affidavit showed that shortly 
after the suit was brought the affiant put the defendant in 
possession of a knowledge of the plaintiff's claim so far as 
the same was known ; that affiant believed defendant imme- 
diately set to work, through its officers, to ti-ace the cars con- 
taining the grain in controversy, and that defendant has since 
been using ordinary and proper means to obtain knowledge 
of the facts relating to plaintiff's claim ; and upon such in- 
quiry defendant, for the first time, on the last Saturday pre- 
ceding, learned that James Clark was the person who weighed 
such grain, and that he was in Baltimore; that since learn- 
ing such fact, sufficient time has not elapsed to obtain his tes- 
timony. The following were the interrogatories, and answers 



1872.] C. & N. W. E. W. Co. v. Ingeesoll et al. 401 
Opinion of the Court. 

of the witness Eaton, the consignee referred to in the opinion 

of the court : 

''11. If a car load of grain in the bulk had been shipped 
to you from Malta, in the forenoon of the seventh of October 
last, over the road of defendants, when, or about when, ac- 
cording to the usual course of business, would it have been 
placed under your control at Chicago as consignee? Ans. On 
the forenoon of Monday or Tuesday following. 

"12. If it had been shipped from Malta on the night of 
the 6th of October last, or very early in the morning of the 
7th, when would it have been placed under your control as 
consignee, in the ordinary course of business? Ans. We 
should have expected it on Monday morning. 

"13. In either of the cases supposed in the last two inter- 
rogatories, would it have been possible or probable, in the 
ordinary course of business, for the grain to have been placed 
under the control of the consignees on Saturday ? Ans. It 
would not." 

The other facts are stated in the opinion of the court. 

Mr. B. C. Cook, for the appellant. 

Messrs. Divine & Peatt, for the appellees. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was an action on the case, in the county court of 
De Kalb county, by appellees against appellant as common 
carrier, for breach of duty in not delivering a quantity of 
wheat and barley shipped by the former, in cars of the latter, 
at Malta in said county, to be safely and securely carried to 
Chicago, and delivered to H. S. Eaton, consignee. 

The grain was shipped in bulk — the wheat on the sixth 
and the barley on the seventh of October, 1871. As to the 
barley, the defense was sought to be made that it was in part 
26— 65th III. 



402 C. & X. ^y. R. ^y. Co. i-. Ixgersolt. et al. [Sept. T., 

Opinion of the Court. 

brought to Chicago on the seventh, being Saturday, and on 
that day delivered by appellant into the elevator of Hunger, 
Wheeler & Co., who were authorized by the consignee to 
receive it, and was destroyed by the great fire in Chicago, 
October 8th and 9th, 1871. 

The first point made is, the denial of the motion for con- 
tinuance made before the trial at the June term, 1872. The 
suit was commenced December 22d, 1871. The appli- 
cation was in June, 1872, and the ground of continuance 
was, the absence of one Clark, who formerly resided in Chi- 
cago, hut then in Baltimore, and, as was alleged, was the person 
who weighed and received the barley into the elevator. We 
think the affidavits for continuance were palpably wanting 
in the essential element of showing diligence. 

The next point arises upon the admission in evidence of 
the answers to interrogatories eleven, twelve, and thirteen, 
put to witness Eaton, the consignee, called on behalf of ap- 
pellees. The witness disclaimed all personal knowledge as 
to time when the grain was shipped, and did not pretend to 
possess any peculiar knowledge as to the management of 
appellant's road, or the running of the trains. Upon facts 
hypothetically stated, he was asked to give his opinion whether 
it Avould have been possible or probable, in the ordinary 
course of business, for the grain to have been placed under 
the control of the consignee on Saturday. The questions were 
objected to by appellant's counsel, but overruled and the 
answers admitted. He said it would not. 

There was no other purpose in calling for the opinions of 
this witness, in this manner, than to anticipate and rebut 
aj)pelhint's defense, by showing that inasmuch as it was im- 
possible foi' the grain to have been put under tiie control of con- 
signee on Saturday, and the elevator was burned Sunday 
night or Monday morning, it was therefore impossible that 
any delivery could have been made which was sufficient to 
discharge the carrier. The theory of the defense was, not 
that tlie grain was placed under the personal control of the 



1872.] C. & N. ^Y. I^. W. Co. v. Ikgersoll et al. 403 

Opinion of the Court 

consignee on Saturday, but that it was delivered to the ware- 
housemen whom the consignee had designated to receive it. 
The questions necessarily call for the mere opinion of the 
witness. It is a general rule that a witness must speak to 
facts, and his mere opinion is not evidence. There are well 
recognized exceptions to the rule, but this case falls within 
none of them. It is perfectly obvious that the opinion of 
the witness could only have been drawn from facts hypo- 
thetically stated, and others, which the jury were equally as 
well qualified to pass upon as the witness. The admission of 
the opinions of the witness was, therefore, error. 

The third point arising is that there was error in exclud- 
ing secondary evidence, offered by appellant, of the contents 
of a written contract between the parties, under which, as 
was claimed, the grain in question was shipped. The evidence 
of loss of original was this: The station agent of appellant 
obtained it from appellees at Malta; then he delivered into 
the hands of another person to take it to Chicago and deliver 
it to the general freight agent, Wheeler, who was the proper 
custodian of it. He had an office in Chicago, where he 
usually kept papers, books, and documents belonging to his 
department, which, with the contents, was burned October 
9, 1871. Neither the messenger who took it from the sta- 
tion agent at Malta, nor Wheeler, nor any witness who ever 
saw it in Wheeler's possession or in his office, was called as a 
witness. Now from the facts that the station agent at Malta 
gave it to a messenger to take it to Wheeler, and the burning 
of his office, the court was called upon to presume that the 
messenger delivered it to Wheeler, and the latter put it in 
his office, and that it remained there, and was therefore de- 
stroyed with the office. This is not a sufficient foundation 
for secondary evidence. Wheeler should have been called to 
show that he received and placed it in his office, and that it 
was there at the time the office was burned. The court must 
be satisfied, by sufficient evidence, that the paper is destroyed 



404 C. & N. ^y. R. ^Y. Co. v. Ixgersoll et al. [Sept. T., 
Opinion of the Court. 

or can not be found. Mariner v. Saunders, 5 Gilm. 113, and 
cases there cited. 

It appears from the evidence that at the time of these ship- 
ments, there was a standing order from Eaton, the consignee, 
to Munger, Wheeler & Co., directing them to receive in store 
any grain consigned to him which might be brought to their 
elevators, put it in bins with other grain of like kind and 
quality by inspection, subject to their advertised rates of 
storage and owner's risk of fire and heating. I 

Eaton had been acting as appellees' factor for some time 
previous, and was so acting in this transaction. 

In the act of receiving grain from the carrier to be put into 
the elevator, weighing was a necessary part, and in the usual 
course of the business. 

Under these circumstances appellant's counsel offered in 
evidence an entry, made October 7th, in a book belonging to 
the business of Mi^nger, Wheeler & Co., shown to have been 
made in the usual course of business, by Clark, the then fore- 
man of the receiving and weighing department; which entry 
tends to show, as is claimed, that the car load of barley in 
question was weighed and received in store at their elevator 
on that day. It was not pretended that Clark was dead ; 
the offer was based upon showing it to have been in his hand- 
writing and made in the course of the performance of his 
ordinary duties, and as part of the res gestce. Greenleaf, in 
his Treatise on Evidence, vol. 1, sec. 120, after referring to 
the admission of such entries, arranges them into two classes. 
The one class consisting of entries made against the interest 
of the party making them, and which derive their admissi- 
bility from that circumstance alone. As to these, he says, it 
is not material xchcn they were made. The testimony of the 
party who made them would be the best evidence of the fact ; 
but if he is dead, the entry of the fact made by him in the 
ordinary course of his business, and against his interest, is 
received as, secondary evidence, in a controversy between third 
persons. " The other class of entries consists of those which 



1872.] C. & X. W. R. W. Co. v. Ingersoll et al. 405 

Oijiuion of the Court. 

constitute parts of a chain or combination of transactions 
between the parties, the proof of one raising a presumption 
that another has taken place. Here the value of the entry, as 
evidence, lies in this, that it was contemporaneous with the 
'principal part done, forming a link in the chain of events, and 
being part of the res gestce. It is not merely the declaration 
of the party, but it is a verbal contemporaneous act, belong- 
ing, not necessarily, indeed, but ordinarily and naturally to 
the principal thing. It is on this ground that this latter 
class of entries is admitted; and therefore it can make no 
difference, as to their admissibility, whether the party who 
made them be living or dead, nor whether he Avas or was not 
interested in making them; his interest going only to affect 
the credibility or weight of the evidence when received." 
See cases cited in note 2 (Redfield Ed.) in support of the text. 

We are of opinion that the entry offered, under the circum- 
stances of this case, falls within the latter class defined by 
Greenleaf, and was admissible for all it was worth. The 
weight of a piece of evidence offered forms no criterion of its 
admissibility. If, in any point of view, it has any tendency 
to prove a" point in issue, and is otherwise competent, it can 
not be excluded because the tendency is but slight. Manv 
such entries are capable of explanation by applying to them 
evidence of the usages and customs of the business. 

The judgment of the court below must be reversed and the 
cause remanded. 

Judgment reversed. 



406 Mahoney et al. v. Mahoney. [Sept. T., 

Syllabus. 



•Dennis Mahoney et al. 



Daniel Mahoney. 

1. Resulting trust. The rule is well established that, where parties 
are strangers, and, upon the purchase of property, the conveyance of the 
legal estate is taken in the name of one, and the money is paid by another, 
a presumptive trust arises, and the party holding the legal estate will be 
a trustee for the one who paid the consideration. But the evidence to sus- 
tain it must be very clear, and is always received with great caution. 

2. Witness — competency of party to suit. On cross-bill filed in a pro- 
ceeding for partition, to establish a resulting trust, it appeared that the parties 
seeking partition, and who were defendants in the cross-bill,were heirs at law 
of the person in whose name the land was purchased : Seld, that the com- 
plainant in the cross-bill was not a competent witness to prove fiicts wliich 
occurred in the life-time of the ancestor for the purpose of establisliing 
the trust. 

3. Evidence — sworn answer in chancery, when not evidence for defendant. 
Where a defendant, in a bill for partition, answered under oath denying 
the right to partition and set up facts showing that he paid the considera- 
tion for the deed to the ancestor of the parties seeking the relief, and con- 
sequently there was a resulting trust in his favor: Held, that such portion 
of the answer as set up the facts establishing the trust were not responsive 
to the bill, and therefore no evidence in his favor. 

4. Partition — account of rents and profits — taxes. Where a partition 
of lands is decreed, and one of the defendants has been in the exclusive 
possession of the same, it is proper to take an account of the rents and 
profits, and if he has paid the taxes, the several parties in interest should 
contribute their just proportion of the same. 

5. Same — where allowance should be made for improvements. Where one 
of the tenants in common of land, in possession under the supposition that 
he was entitled to the whole of the premises, has made valuable improve- 
ments, he should have the benefit thereof in making equitable partition, 
and if that can not be done, he should be allowed compensation for the 
same. But, when sued for a partition, he can not obtain this relief upon 
his answer, but must file a cross-bill. 

Appeal from the Circuit Court of Will county; the Hon. 
JosiAH McRoBERTS, Judge, presiding. 



1872.] Mahoxey et al. v. Mahoney. 407 

Opinion of the Court. 

Mr. R. E. Barber, for the appellants. 

Messrs. Felt.ows & Leonard, for the appellee. 

Mr. Justice Thornton delivered the opinion of the Court : 

This was a bill in chancery for partition and for an account 
of rents and profits. The defendant filed a sworn answer, and 
also a cross-bill alleging that the ancestor of complainants 
purchased the land with the money of defendant, and took the 
deed in his own name, and claimed a resulting trust in the 
land. 

The rule is well established that, where parties are stran- 
gers, and, upon the purchase of property, the conveyance of 
the legal estate is taken in the name of one, and the money 
is paid by another, a presumptive trust arises, and the party 
holding the legal estate will be a trustee for the one who paid 
the consideration. But the evidence to sustain it must be 
very clear, and is always received with great caution. 

If we leave out of consideration the evidence of the cestui 
que trust, then the proof is too uncertain, and wholly insuffi- 
cient to sustain the position that the consideration proceeded 
from him. There would be no security to the legal title, if it 
could be unsettled by such equivocal proof as is presented 
in this record to establish the trust. 

When we discard the evidence of the complainant in the 
cross-bill, the proof is very slight to show the payment of 
the consideration by him. Was he a competent witness? 

The defendants in the cross-bill were heirs of the person 
in whose name the purchase was made, and he was dead. The 
complainant testified to facts which occurred before his death, 
and was clearly within the prohibition of the act of 1867, sec- 
tion 2. (Sess. Laws 1867, p. 183.) 

The sworn answer of the complainant in the cross-bill, to 
the original bill for partition, can not aid him. The portion 
of the answer in regard to the payment of the consideration 
and the consequent resulting trust, is not responsive to the 



408 Mahoney et al v. Mahoney. [Sept. T., 

Opinion of the Court. 

bill for partition. It is affirmative matter, and therefore need 
not be disproved. As the answer, in the respect referred to, 
was not responsive to the bill, it was not evidence, but the 
facts alleged must be established by independent proof. 

It was, therefore, error to decree a resulting trust. 

We are of opinion that partition should have been made, 
and an account of rents and profits taken. If the party in 
possession has paid taxes, he is entitled to be allowed three- 
fourths of them against the other parties in interest. 

If, as we infer from the proof, the defendant has made im- 
provements and expended money and labor in repairs, he should 
file his cross-bill, or amend the present one, setting up his 
claim for improvements and repairs. If, upon the supposition 
that he was entitled to the whole of the premises, he has 
made valuable improvements, he should have the benefit 
thereof in making equitable partition, and if that can not be 
done, he should be allowed compensation. If the value of 
the farm has been enhanced by the ordinary repairs and im- 
provements necessary for its use and preservation, he should 
have remuneration therefor. 

The principles which should control under such circum- 
stances have been settled in the cases of Louvalle v. Menard, 
1 Gilm. 39; Howey v. Goings, 13 111. 95; Bean v. 0'3Ieara, 
47 111. 120. 

Decree reversed and cause remanded. 

Decree reversed. 



1872.J Daniels v. Fifth Nat. Bank of Chicago. 409 

Opinion of the Court. 



Joel A. Daniels 

V. 

The Fifth National Bank of Chicago. 

1. Practice — loss or destruction of files — defomlt. After the destruction 
of the records and files of the court by fire, among which were those of 
an ejectment suit, the plaiutifi"'s attorney filed his affidavit, showing the 
time of the commencement of the suit, issuing of summons, service upon 
defendant and plea by the latter, and showing the cause to have been at 
issue ; also that the affiant had substantial copies of the papers which had 
been filed. The plaintiff, under leave of the court to file a substantial 
copy, filed a new declaration. In a few days after this, the court entered 
a rule on the defendant to plead by a day named, and on the next day after 
the expiration of the rule, rendered judgment against the defendant by de- 
fault : HeMi that the court erred, as the defendant had once pleaded, and 
there was an issue of fact for trial. 

2. On failure of a defendant to file another plea in place of one that 
has been destroyed, in compliance with the rule of the court, the court can 
do no more than to allow the plaintiff to supply the plea. In such a case 
the court can not properly give judgment against the defendant by default 
for want of a plea. 

Appeal from the Superior Court of Cook county ; the 
Hon. Joseph E. Gary, Judge, presiding. 

Messrs. Knowlton & Humpheeyville, for the appellant. 

Messrs. Shokey & Norton, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an action of ejectment, brought in the Superior 
Court of Chicago, wherein judgment by default was rendered 
against the defendant below, the appellant. 

The record contains an affidavit of James S. Norton, the 
attorney of the plaintiff below, filed on the 14th day of 



410 Daniels v. Fifth Nat. Bank of Chicago. [Sept. T.^ 

Opinion of the Court. 

December, 1871, which sets forth the commencement of the suit 
in the Superior Court of Cook county, the issuing of a sum- 
mons therein, and the service of it upon the defendant, the 
filing of a plea by the defendant to the plaintiff's declaration; 
that the cause was at issue before the 8th day of October, 
1871, and that on the 9th day of the said October, the records 
and papers pertaining to said suit were wholly destroyed by 
fire ; that the affiant had a substantial copy of the papers 
which had been filed in the suit and so destroyed by fire, and 
he offered to file them in place of those so destroyed. 

On the said 14th day of December, the plaintiff, under 
leave given by the court to file a substantial copy of the dec- 
laration, filed a declaration. 

Afterwards, on the 16th day of said December, the court 
made an order that the defendant plead to the declaration on 
or before the 3d day of January then next. 

On the 4th day of January, 1872, the court, for the reason 
that no plea had been filed by the defendant, as [required by 
the order of the 16th of December, rendered judgment against 
the defendant by default, for want of a plea. 

As the defendant had once filed a plea, and the cause was 
at issue, as shown by the affidavit of the plaintiff's attorney, 
it was error to render judgment against the defendant by de- 
fault for want of a plea. The issue formed should have been 
tried by a jury. 

The destroying of the files of the cause, and the records of 
the court, by fire, did not do away with the fact that a plea 
had been filed, and that the cause stood at issue 

It was but the destruction of evidence of the facts, and, 
notwithstanding, the fact remained that the defendant had 
filed a plea. 

On failure of the defendant to file another plea, in compli- 
ance with the order of the court, the court could have done 
no more than to permit the plaintiff himself to supply the 
plea, as it had permitted him to supply the declaration ; it 



1872.] "Whitaker v. Robinson, 411 

Syllabus. 

could not properly give judgment against the defendant by de- 
fault for want of a plea. 

The judgment must be reversed and the cause remanded. 

Judgment reversed.^ 



William Whitakee 

V. 

James Robinson. 

1. Specific performance — what laches will defeat. Where the vendee 
of land assigned his interest to A and B, who went into possession, and 
when the last payment fell due, the vendor prepared a deed, and sent it to 
have the same tendered to A and B, but was unable to make such tender, 
from the fact that they had left the country, and he thereupon went int» 
possession, and sold the land to C, who made valuable improvements 
thereon; and D, who had acquired the interest of A and B, which fact he 
seems to have kept concealed, eight years after the last payment fell due^ 
filed his bill for a specific performance of the contract, it appearing that he 
lived near the land all the time: Held, that his tocAes was such, unex- 
plained, as to defeat his right to the equitable relief. 

2. Vendor and \ekdke— forfeiture — rigJit to declare. Where a contract 
for the sale of land contained a clause of forfeiture, in the event of non- 
payment, and the vendor made a deed, to be tendered after the last pay- 
ment became due, but was unable to make the tender, because the assignees 
of the vendee had left the country, and he thereupon took possession, and 
sold the land to E, who made valuable improvements; and it turned out 
that the complainant, who lived in the neighborhood, had acquired the 
interest of such assignees, which fact he kept concealed until eight years 
after the purchase monej' was due : Held, that the sale to E operated as a 

* Myers v. The Fifth National Bank op Chicago. 

Per Curiam : This case is similar in im facts with the foregoing case of Joel A. 

Daniels v. The Fifth Natimial Bank of Cfiicago, and, for the reasons there stated^ 

the judgment is reversed and the cause remanded. 

Judgment reversed. 



412 Whitakee v. Robinson. [Sept. T., 

Statement of the case. 

declaration of forfeiture of the contract; and that if the vendor was bound 
to tender a deed before declaring a forfeiture, he did all in his power to 
do so, by making the deed and seeking for the parties, to make the tender, 
and was chargeable with no fault. 

3. Same — right to recover hack money paid, where the vendor rescinds. 
Where the vendor of land exercised the right, reserved to him in the con- 
tract, of declaring a forfeiture of the same for non-payment: Held, on bill 
in equity, by an assignee of the vendee, for a specific performance, and 
for a decree for a return of the purchase money paid, in the event specific 
performance was not granted, that no such recovery could be had. 

Writ of Error to the Circuit Court of La Salle county, 
the Hon. E. S. Leland, Judge, presiding. 

This was a bill in equity, by the plaintiff in erroK, for the 
specific performance of a contract for the sale of a tract of 
land in LaSalle county, made by Robinson to David Tullis. 
By the contract, the price of the land was to be $800, of 
which sum $175 was paid cash in hand; $225 was to be paid 
January 1, 1856; $200 January 1, 1857, and $200 January 1, 
1 858, with interest on the deferred payments at six per cent 
per annum. Notes were given for the deferred payments. The 
vendor obligated himself to make a warranty deed upon pay- 
ment of the several notes when they respectively matured. 
The contract contained the following clause: "If, however, 
the said David Tullis shall not punctually pay the said sums 
at the times and place above named, then the said Milton Rob- 
inson is at liberty to declare the above contract and this bond 
of no effect and utterly void." 

Tullis assigned the written contract to Julian andRadcliffe, 
January 31, 1856, and on June 2, 1857, Julian assigned his 
interest in the contract to Whitaker. On June 20, 1857, 
Julian and Radcliffe mortgaged the land to Whitaker. The 
other facts bearing upon the questions decided appear in the 
opinion. 

Mr. E. S. HoLBROOK, for the plaintiff in error. 

Mr. E. F. Bull, for the defendant in error. 



1872.J Whitaker v. Robinson. 41S 

Opinion of the Court. 

Mr. Chief Justice Lawrence delivered the opinion of 
the Court: 

The land was sold in 1855, and the last payment fell due in 
Januarv, 1858. The contract contained a clause authorizing 
the vendor to declare a forfeiture in the event of non-payment. 
It was assigned by the vendee to Julian and Radcliffe, and 
Julian assigned to Whitaker, the complainant. Radclifte and 
Julian also united in a mortgage to complainant. This was 
in 1857. The last payment not being made, the vendor sent 
one of his sons to the house of Eadcliife, near the land, to 
demand payment and tender a deed. He saw Radcliffe's wife, 
and told her the deed was ready, but his wife said E,adcliife 
had left the country, as appears from the evidence to have 
been the fact. Julian also had left, and the vendor, so far as 
appears, knew nothing of the interest of Whitaker. There 
was a person on the land who had been tenant of RadcliiFe, 
and he attorned to the vendor. In March of the same year 
(1858), the vendor re-sold the land to Evans, who went into 
possession, and continued in possession until the commence- 
ment of this suit, making, in the meantime, valuable im- 
provements. The vendor died in 1863, and in 1866 Whitaker 
filed this bill against his heirs and Evans, asking a convey- 
ance, and, failing in that, praying for a return of the purchase 
money paid to the vendor on the first sale, or of so much 
thereof as would belong to Whitaker. 

The mere laches of Whitaker in asserting his rights under 
the bond, being a delay of eight years from the maturing of 
the last payment until the commencement of this suit, would 
be a sufficient reason for not granting a specific performance. 
No satisfactory excuse is shown for the delay. He lived all 
the time within a few miles of the land, and necessarily knew 
that Evans had bought and was improving it. 

But apart from this, by the terms of the bond, the vendor 
had the power of declaring a forfeiture, and this he did when 



414 Whitaker f. Robinson. [Sept. T., 



Opinion of the Court. 



be re-sold the land to Evans. It is said he should have ten- 
dered a deed before declaring a forfeiture. The proof shows 
that he was ready to do so, but both Julian and Radcliffe had 
left the country, and Whitaker, who probably held the bond, 
gave no indication that he claimed any interest in the land. 
The preceding payment had been made by Julian and E,ad- 
olifie, and they were the only persons from whom the vendor 
had reason to expect payment of the instalment then due. 
We do not decide whether, by the terms of the contract, the 
vendor was under obligation to tender a deed before declaring 
the contract forfeited, but only say that if he was so, he did 
all that was in his power to that end, and is chargeable with 
no fault. 

It is unnecessary to decide whether the statute of limita- 
tions, which is set up in the answer, would be a bar to the 
recovery of the money paid, since, under the decision of this 
court in the case of Wheeler v. Mather, 56 111. 241, there could 
be no recovery, independently of the question of time. The 
writer of this opinion did not concur in that decision, but it 
is now the rule of the court, and is applicable to the present 
case. When the record in this case was brought here, that 
decision had not been announced. The counsel for plaintiff 
in error endeavors to point out a distinction between that case 
.and the one at bar, but we can see none, in principle. 

The decree of the circuit court must be affirmed. 

Decree affirmed. 



■'^'^ARD £ '^ 



*Mi^ 



1872.] RocKFORD Insurance Co. v. Nelson/^ 44/41 5 

Syllabus, 



The Rockford Insurance Company 

V. 

Sarah Nelson. 

1. Error — pleadings. Where demurrers were sustained to pleas pre 
senting defenses admissible under the general issue, which was also pleaded, 
and such defenses were presented by the evidence and the instructions, and 
considered by the jury, this court will not consider the question whether 
the court properly sustained the demurrers. 

3. Pleading and evidekce — variance — declaration on insurance policy _ 
A policj'- of insurance, with the conditions annexed, constitutes an entire 
contract, and in declaring upon the contract, it, or a sufficient portion of 
it to show a right of recovery, must be set out either in terms or in sub- 
stance, or there will be a variance. 

3. Same — when condition must be set out. Where a contract, payable 
only upon the performance of certain acts, is declared upon, all such pre- 
cedent acts sho^ild be set out, and their performance averred. But all con- 
ditions subsequent to the right of recovery, and all acts to be done in dis- 
charge of the liability, may be omitted and left to be set up as a defense. 
Where precedent conditions are not set out in the declaration, there will 
be such a variance as to exclude the contract or obligation as evidence. 

4. Instruction as to evidence for variance. Where the contract sued on 
is variant from one count in the declaration, but is admitted under another 
count, the court, when asked, should instruct the jury to disregard it under 
the count as to which it is variant. 

5. Insurance — construction of application as to warranty of title. 
Where an application for insurance was made a part of the policy, and de. 
clared to be a warranty of the title therein specified, and in it, when«,sked 
whether the title was a warranty deed or a bond, the answer was "W. D." ; 
and when asked "Is your property incumbered ?" the answer was "None:" 
Held, that this could not be construed as representing that the assured held 
any particular kind of title, or the nature of the estate he claimed 

6. Same— joroo/ as to the title or interest of assured. Where an applica- 
tion for insurance contains no assertion of the kind of title or the nature of 
the estate claimed, the assured, in a suit on the policy, will not be required 
to prove that he held a fee. And where the declaration averred that 
he was the owner of the property, the plaintiff is only bound to prove an 
insurable interest. ' 

7. Construction — loord owner. Language not having a technical mean- 
ing must be construed with reference to the subject to which it is applied. 



4IG RocKFORD IxsuRANCK Co. V. Nelson. [Sept. T., 

Syllabus. 

Thus, iu a declaration on a policy of insurance, the averment of owner- 
ship will be construed to mean an insurable interest, but as in a contract 
or covenant to convey land, the thing sold and purchased is the land, when 
the vendor says in his covenant that he is the owner, and agrees to convey 
it to another, the law will hold the assertion of ownership to imply that 
the vendor held an absolute title, and agreed to convey the same. 

8. Insurance — what is an insurable interest. "Where a house and lot 
had been occupied by a husband and wife and their family as a homestead,, 
and the husband, when he left his wife, made a verbal gift of the property 
to her, and she continued to occupy the same as a homestead, and by her 
own earnings, and with money not derived from her husband, erected 
buildings thereon : Held, that this undeniably gave the wife an insurable 
interest in the propertj-, as she was the owner of the right to occupy the 
premises as a homestead to the extent of $1000, and had an equitable in- 
terest in the premises for improvements made thereon which a court of 
equity would protect even as against the husband. 

9. Same — when company is bound by statements in application and estopped 
from denying their truth. Where the agent of an insurance company 
makes out an application for insurance, with a knowledge of the facts, and 
there is no collusion between him and the applicant, the company, in a 
suit upon the policy, will be bound by the statements in the application as 
to title, the situation of the property with reference toother buildings, and 
the purpose for which the property was occupied. 

10. But if there be fraud and collusion between the applicant and the 
agent, the rule is otherwise, for then the knowledge of the facts by the 
agent can not be considered the knowledge of the company, because 
if engaged in defrauding his principal, he will not be presumed to have 
communicated the information. 

11. In a suit upon a policy of insurance, where the issue presented by 
the pleadings was whether there was fraud and collusion between the as- 
sured and the agent of the company in representing the building insured 
as being a dwelling house, when, in fact, it was being used as a public 
hotel, the court instructed the jury that the knowledge of the facts in re- 
gard to the purposes for which the house was used, was the knowledge of 
the defendant: Held, that the instruction was erroneous as wholly ignor- 
ing the real issue. 

12. Instruction — must relate to tJie issue. In a suit on a policy of in- 
surance, the court instructed the jury, for the plaintiff, that if they found 
the representation of title in the application to obtain the policy was true,, 
and if tliey believed certain facts to be true, then there was no fraud in 
that respect when there was no issue of fraud in respect to sucli mat^ 
ters, but there was as to other matters: Held, that the instruction was too- 
broad 



1872.] KocKFOKD I^"SURA^■C£ Co. r. Nelson. 417 

Opinion of tlie Court. 

13. Same — repeating principles. Tliis court has long and uniformly 
held that it is not error for the court to refuse to repeat instructions already 
given, althougli there may be a sliglit change in the phraseology. 

14. Instjrance — interest. Wliere, by the terms of an insurance policy 
the assured was only entitled to recover two-thirds of the value of the 
property insured in case of loss, an instruction is erroneous which directs 
the jury to compute interest on the value of the property destroyed 

15. Same — violation of instructions by agent. A violation of secret in- 
structions by an insurance agent in talking applications and eflecting in- 
surance, will not affect the assured unless he had notice of such instruc- 
tions at the time. 

16. Estoppel — to question fonn of action. Where a policy of insurance 
was burned, and the insurance company, wlien applied to for that purpose, 
furnished what they represented to be a true copj^, which was not under 
seal, and, when sued in assumpsit thereon, they claimed that the original 
was under the seal of the company, and therefore the action should have 
been covenant: Held, that the company was, by its act, estopped from 
denying that the copy was not a true and correct one, and from urging the 
objection to the form of the action. 

17. Action— form of on sealed instrument. Under the statute of 1872 an 
action of assumpsit may be brought upon a sealed obligation, and such 
statute applies to actions brought before its passage as well as those 
brought afterwards. 

Appeal from the Circuit Court of Mercer county ; the 
Hon. Arthur A. Smith, Judge, presiding. 

Mr. J. M. Bailey, and Mr. J. I. Neff, for the appellant. 

Messrs. Pepper & Wilson, for the appellee. 

Mr. Justice Walker delivered the opinion of the Court : 

This was an action of assumpsit, on a policy of insurance 
issued by appellant to appellee. It covered a house described 
as a dwelling and boarding house, household furniture, beds 
and bedding, wearing apparel and provisions, all in the house; 
also a barn on the same lot, but the latter is not in contro- 
versy, as it was not burned. The declaration avers the prop- 
erty was destroyed by fire in such a manner as to render the 
company liable to pay for the loss. 

Appellant filed the general issue, and fourteen special pleas, 

to which there were replications, followed by rejoinders. 
27 — 65th III. 



418 RocKFoiiD I.\suj;a.\ck Co. v. Nklsox. [Sept. T., 

Opinion of the Court. 

In making up the issues^ several demurrers were sustained 
or overruled, of which appellant complains, but we deem it 
entirely unnecessary to consider the questions they present, as 
all the pleas interpose defenses that were not only admis- 
sible under the general issue, but were presented by the evi- 
dence and instructions, and considered by the jury. No 
practical benefit would arise to any one by determining 
whether the court erred in settling the pleadings, and we 
therefore pass them over without discussion. 

It is urged that the court below erred in admitting the pol- 
icy of insurance under the first count of appellee's declaration, 
because it is claimed that there was a variance. 

The policy, with the conditions annexed, constitute an en- 
tire contract, and, in declaring upon the contract, it, or a suf- 
ficient portion of it to show a right of recovery, must be set 
out, either in terms or in substance. This is not like suing on 
a penal bond at common law, where the plaintiff might simply 
count on the bond and leave the defendant to set up the con- 
dition and plead performance. But in a case of this charac- 
ter, the money only being payable upon the assured 2)erform- 
ing certain acts, al! such precedent acts should be set out, and 
their performance averred. But all conditions subsequent to 
the right of recovery, and all acts to be done by the company 
in discharge of their liability, may be omitted and left to be 
set up as a defense. 

Precedent conditions were not set out in the first count, and 
hence there was such a variance as should have excluded the 
])olicy as evidence under the count, or the instruction to tlis- 
regard it under that count, should have been given. 

The declaration in this case avers that appellee was the 
owner of (he j)i'(){)erty insured, not that she owned the house 
and lot in fee, as is urged by appellant. 

We have carefully examined appellant's abstract, and, taking- 
it to be correct, we conclude counsel must be under a misap- 
prehension as to the averment. At any rate, we have been 
unable to find the averment they refer to in their argument. 



1872.] RocKFOKD Insurance Co. v. Nelson. 419 

Opinion of the Court. 

If they infer that, because the application was made a part 
of the policy, and therein declared to be a warranty, she 
held the title specified in the application : still, when it is re- 
sorted to, we find she applied for insurance on one dwelling 
house, and when asked whether the title was a warranty deed 
or a bond, the answer is ''W. D." And when asked, "Is your 
property incumbered?" the answer is, "None." These are the 
onlv expressions in the application in reference to appellee's 
title, and we fail to find, by the application of the meaning 
attached to words, that she has represented herself as holding 
any particular kind of title. The word'fe "one dwelling house'' 
do not import title of any kind. The letters "W. D." have 
no such meaning, nor does the question, " Is your property 
incumbered?" 

If the letters "W. D." mean a warranty deed, it must ap- 
pear from extrinsic evidence, if that could be received. They 
have no such fixed and definite meaning in the law, nor in 
common use, or even in the connection in M'hich they are em- 
ployed. That may be their meaning, but it is not apparent. 
But if it was conceded that they mean appellee's title was a 
warranty deed, still that is not an assertion that such a title 
is a fee. No member of the profession, we presume, would 
sav that it was. All know that a warranty deed may pass a 
term of vears, a life estate, a fee or less estate, or it may pass no 
estate whatever. It conveys, as all know, only the estate of 
the grantor, whatever it may be. If he has none, it can pass 
none to the grantee. These are elementary rules of the sim- 
plest character. We, then, look in vain to find any assertion 
in the application as to the kind of title or the nature of the 
estate she claimed. It, then, does not appear from the appli- 
cation that she was required to prove that she held a fee or 
other absolute estate in the lot and house. 

Then, under the averment in the declaration that she was 
the owner of the property, what was she bound to prove ? 
Manifestly, that she held and owned an insurable interest — 



420 RocKFOED Iksurance Co. v. Nelson. [Sept. T., 

Opinion of tiie Court. 

such a title as, if there should be loss, it Avould fall upon and 
have to be borne by her. 

In a declaration on a policy of'insurance, the averment that 
the assured was the owner of the property destroyed must be 
considered with reference to the contract of insurance. It 
amounts to an averment that the assured had an insurable in- 
terest, and not that he was the absolute owner of the property. 
When he sues, his right to recover depends upon whether he 
Avas the owner of an insurable interest, and not whether he was 
the absolute owner, and the averment must be so construed. 
It can not be construed as it would be in a contract or cove- 
nant to convey land, as in such case the thing sold and pur- 
chased is the land, and when the vendor says in his covenant 
that he is the owner, and agrees to convey it to another, the 
law holds that, as the parties understood by the covenant that 
it was the land that was sold, the assertion of ownership 
implied the vendor held the absolute title, and had agreed to 
convey such a title as would vest in the vendee absolute own- 
ership. 

Language not having a technical meaning must be con- 
strued with reference to the subject to which it is apjMied. 

Then, under either the application for the insurance or the 
averment in the declaration, appellee was only bound to prove 
that she held such a title as gave her an insurable interest, 
and all questions beyond that were immaterial. 

The question then arises whether appellee held such a title. 
The evidence shows that the house and lot had been occupied 
by her and her husband and family as a homestead ; that he 
had abandoned her, and had made a verbal gift of the prop- 
erty to her when he left; that she, with the fiimily, had re- 
mained on and occupied the house and lot as a homestead, 
she being the head of the family. She, by her own earnings 
and with her own money in nowise derived from her husband, 
erected the building either in whole or in part. 

This undeniably gave her an insurable interest in the prop- 
erty. She was the owner of the right to occupy the premises 



1872.] EdfKFoiiD I.NSUKANCK Co. V. Nei.sox. 421 

Opinion of the Court. 

tis a homestead, free from forced sale, to the extent of flOOO; 
and appellee being entitled to her earnings, under the act of 
1869, in her own right, accumulated whilst separated from 
her husband, a court of equity would have protected her in 
tneir enjoyment against her husband, even after placing them 
in the building. 

We are not prepared to hold that, in equity, there was not 
such an execution of the gift as would, as against the husband, 
have compelled a conveyance. At any rate, equity would 
have restrained him from dispossessing her of the property, 
and Avould have charged it to the extent that she expended 
money in its improvement. She clearly had, as the proof 
shows, such an ownership as gave her an insurable interest in 
the property, and that was all she was required to show under 
her declaration. 

If the agent of appellant made out the application for the 
insurance with a knowledge of the facts, and there was no 
collusion in doing so between him and appellee, then appel- 
lant is bound by its statements as to title, the situation of the 
property in reference to other buildings, as well as the state- 
ment as to the purposes for which it was occupied and used. 
Such has been the uniform ruling of this court for many years; 
and the fact that appellee is illiterate, being unable to write 
or read writing, and probably as such persons usually are not 
well informed and easily imposed on as to the nature and con- 
tents of written instruments, this case does not appeal to us 
with any force to review and overrule a long line of decisions 
to relieve this company from liability. If they have a meri- 
torious defense, let it be made on the grounds presenting it, 
but we can not overrule established principles to relieve them. 
We feel that the rule is salutary and almost indispensable for 
the protection of a large class, if not the majority of the com- 
munity, who do not know or even dream of the force and 
effect that is to be given to such an application when it is ex- 
ecuted. 



422 RocKFORD Insurance Co. v. Nelson. [Sept. T., 

Opinion of the Court. 

There are various objections taken to appellee's instruc- 
tions. We see no valid objection to the first, but the second 
is faultv in the fact that it asserts that the knowledge of the 
facts in regard to the purposes for which the house was used, 
was the knowledge of appellant, and the jury were told to 
find there was no fraud in that respect. This instruction 
whollv ignores the issue that the house was, by fraud and col- 
lusion between appellee and the agent, represented as a dwel- 
ling and boarding house, when it Avas in fact a public hotel. 
As the issues were formed, the jury should have been left to 
find whether it was a hotel, and whether she knew the agent 
Avas prohibited from receiving applications to insure such 
buildings, and whether there was collusion and fraud in 
making the application as it was done. If these things "were 
all true, then the knowledge of the facts by the agent could 
not affect the company unless known and assented to by 
them. 

The knowledge of the agent in such a case would not be- 
considered the knowledge of the company, because, if so en- 
gaged in defrauding his principal, he would not be presumed 
to have communicated the information to appellant. 

This instruction, as we understand it, excludes the question 
of fraud and collusion from the consideration of the jury, and 
should not have been given. 

It is objected that the third of appellee's instructions is- 
Avrong. It may be tiie instruction is too broad in telling the 
jury if tiiey find the representations of her title in tlie appli- 
cation to obtain the policy were true, and if they believed cer- 
tain facts to be true, there was no fraud in tiiat respect, when 
there was no issue of fraud on that question. And another 
objection is urged that this instruction tells them that, if the 
supposed facts are true, they should find that appellant had 
an insurable interest. It is contended that she might have 
an insurable interest and still not be the owner, as averred in 
her declaration. 



1872.] EocKFORD Insurance Co. r. Nelson. 423 

Opinion of tlie Court. 

It seems to us that the true question is, whether the facts 
stated in the instruction were evidence of ownership, as averred 
in the declaration, and we think they were, and in that respect 
the instruction was not calculated to mislead the jury. 

We perceive no objection to the fourth of appellee's in- 
structions. The facts the jury are required by it to find seem, 
as far as we can see, to exclude any and all kinds of fraud in- 
sisted on in this case. 

The eighth of appellee's instructions is liable to the objec- 
tion urged against the second, in so far as it ignores the de- 
fense of fraudulent collusion. 

The ninth instruction is wrong in directing the jury to com- 
pute interest on the value of the property destroyed. Now, 
by the terms of the policy, appellee was only entitled to re- 
cover two-thirds of the value of the house, whilst this in- 
struction authorizes the jury to conipute interest on its full 
value. 

We see no objection to appellee's twelfth instruction. It 
has been repeatedly held that, where insurance agents have 
secret instructions, as they are believed to have generally, 
a violation of such instructions does not affect the assured 
unless he has notice of them ; and the assured is not bound 
by the general instructions of the agent unless they are 
brought home to the assured bv notice. 

In the case of The jEtna Ins. Co. v. Ilaguire, 51 111. 3 12, it 
was said, "We desire it to be understood, in this jurisdiction 
at least, where an insurance company has appointed an agent, 
known and recognized as such, and he, by his acts, known and 
acquiesced in by them, induces the public to believe he is 
vested with authority necessary to do the act, and nothing to 
the contrary is shown or pretended at the time of doing the 
act, public policy, the safety of the people, demand the com- 
panv should be liable for such acts as appear on their face to 
be usual and proper in and about the business in which the 
agent is engaged. It is the fault of the companies in sending 
agents out among the people, gaining public confidence by 



424 EocKFORD IxsuEA>X'E Co. V. Xelson. [Sept. T., 

Opinio u of the Court. 

the seeming acquiescence of their constituents in the conduct 
of their business. When a loss happens, they should not be 
permitted to say, in any case, their agent acted beyond the 
scope of his authority, unless it shall be made to appear the 
assured was informed of, and knew the precise extent of the 
authority conferred. Any other principle, in its operation, would 
be turning loose upon an unsuspecting, honest and confiding 
people a horde of plunderers, against which no ordinary vigil- 
ance could guard." And see N. E. F. and M. Ins. Co. v. 
Schellter, 38 111. 166. The instruction is fully sustained by 
these cases. 

It is objected that the suit should have been in covenant, 
and not in assumpsit, as the policy was under seal. This, no 
doubt, is true, as a general proposition, but parties may unde- 
niably waive such rights or estop themselves from urging such 
objections. 

In this case the original was burned, and the company, on 
being requested, furnished the instrument sued on, as a copy; 
and, having done so, they should be estopped from denying 
that it is a true and correct copy. To hold otherwise would 
be to permit appellant to successfully perpetrate a fraud on 
appellee. It would be no less a wrong than to induce appel- 
lee to bring the only action she could maintain on the copy, 
if correct, and which appellant had said was, and then, after 
the year had expired within which she could maintain her 
suit, raise the question and wholly defeat a recovery. This 
would be so manifestly unjust that no court could lend its 
sanction to such practice. 

But section 18 of the statute of 1872, p. 341, has author- 
ized this action to be brought on such a policy, even if it ap- 
peared on its face to have been under seal. It is true, this act 
was not adopted until after this trial was had, but it must 
have effect on all cases pending at the time of its passage, and 
must govern this case on another trial. The court did not, 
therefore, err in refusing to give appellant's 24th, 25th, 26th 



1872.] Olof Johnson's Admes. v. Yatjghn. 425 

Syllabus. 

and 27th instructions, as they were estopped from being heard 
to say that the policy was under seal. 

In this case appellant asked the unpi'ecedented number 
of forty-six instructions, many of them of great length. A 
large number of them were given, certainly all appellant 
was entitled to, and we feel no disposition to uselessly waste 
time in commenting on those refused, and hence pass them 
over by saying that we think the court acted properly in so 
doing. 

Many of these instructions being repetitions several times 
stated, with no apparent purpose, unless it be to create 
confusion or to encumber the record, we suggest to counsel 
that this court has long and uniformly held that it is not error 
for the court to refuse to repeat instructions already given, 
although there may be a slight change in the phraseology. 

On the question of the assessment of damages, we are clearly 
of the opinion that they are too large, even after the remittitur 
was entered. From the evidence, there could not have been 
destroyed the value of beds and bedding allowed by the jury, 
nor the amount of wearing apparel, even after deducting §300, 
the amount remitted. 

The judgment of the court below is reversed and the cause 

remanded. 

Judgment reversed. 



Olof Johnson's Administrators 

V. 

Henry Vaughn. 



1. CoKTRrBUTiON — right of , from co-surety not defeated iy taking collat- 
eral which proves unavailing. On bill by one surety against a co-surety 
to compel him to contribute bis share of the debt paid by the complain, 
ant for their principal, it appeared that one of the co-sureties had placed 



426 Olof Johnson's Admrs. t-. Vaughn. [Sept. T., 

Opinion of the Court 

in the hands of the complainant a note on a third party, to indemnify 
him against loss by reason of his suretyship; that this note was of but 
little or no value, the maker and indorser being insolvent, and that nothing 
had been realized from it: Held, that the complainant, by taking such 
security, did not lose his right to claim contribution; that all the obliga- 
tion resting on him was, if the collateral was available, to accouut to hia 
co-surety for his just proportion; and that, should he, after contribution, 
collect it, or any part thereof, an action would lie against him by the co- 
sureties for their just proportion. 

2. Parties en chancery — hill to enforce contribution by a surety. On 
a bill in equitj^ by one surety against a co-surety, to enforce contribution, 
the principal, and other sureties who are insolvent, are not necessary par- 
ties. 

Writ of Error to the Circuit Court of Knox county; the 
Hon. Arthur A. Smith, Judge, presiding. 

Mr. John I. Bennett, for the plaintiffs in error. 

Mr. P. H. Sanford, for the defendant in error. 

Mr. Justice Breese delivered the opinion of the Court : 

This was a bill in equity, in the Knox circuit court, to 
3ompel contribution from Olof Johnson, under the following 
circumstances: One Richard H. Lynam being indebted to 
S. Hubbell Reynolds in the sum of four hundred dollars, 
executed his note to Reynolds for the amount, on the 5th day 
of February, 1867, with Lavina Lynam, William H. Lynam, 
the complainant, Henry J. Vaughn, and Olof Johnson, as 
sureties; that suit was brought on the note before the police 
magistrate of Galesburg, and all the parties served except 
Johnson. Judgment was rendered by the police magistrate 
against all the parties served, and afi.J'a. in due time was 
issued upon the judgment, and placed in the hands of a con- 
stable for collection. Vaughn, being notified of this fact, in 
May, 1869, paid the amount of the execution in full, and now 
seeks contribution from Johnson. After the bill of complaint 



1872.] Olof Johnson's Admks. v. Vaughn. 427 

Opinion of the Court. 

wa.s filed, Johnson died, and the suit Avas revived against his 
administrators. Lavina Lynam, one of the co-sureties, paid 
complainant one hundred and fifty-four dollars on account of 
her contributory share, and the other Lynams are insolvent, 
and so is Lavina. 

It appeared that William H. Lynam, one of the co-sureties, 
placed in complainant's hands, in the fall of 1869. as collat- 
eral, a note, executed by A. W. Wade to Lavina Lynam, for 
the sum of five hundred and sixty dollars, payable March 1, 
1870, with ten per cent interest, and dated March 31, 1868. 
The note, as appears by the receipt given by complainant, 
was placed in his hands to secure him .against any loss by 
his having signed the Reynolds note, with the understanding 
it was to be returned to her whenever the Reynolds note should 
be paid by Lavina Lynam. 

The testimony shows this note was of but little, if any, 
real value. It was given in consideration of a tract of land 
sold Wade by Lavina Lynam, which was covered, at the time 
of the execution of the note, by a mortgage made by the 
payee on the land for its full value, and which she was unable 
to remove, and that Wade had no more personal property 
than the law exempted from execution, and no real estate, 
and was otherwise in debt. 

Appellants contend that taking this collateral by complain- 
ant, exonerated his co-surety, Johnson, from his obligation to 
contribute. We know of no rule of law or equity forbidding 
a co-surety from taking collateral security. All the obliga- 
tion I'esting upon him, if the collateral is available, is to 
account to his co-surety for his just proportion. Appellee 
has never denied the right of appellants to participate in the 
avails of this note, should there hereafter be anything realized 
from it. His offier to deposit it with a third party, for the 
joint benefit of himself and appellants, is all that could or 
ought to be required of him. Should he collect it, or any 
part of it, an action would lie against him, by appellants, for 
their proportion. Ko laches can be imputed to complainant 



428 HiNER V. Jeanpert et al. [Sept. T., 

Syllabus. 

for not collecting from the Lynams, for the proof is conclu- 
sive of their utter insolvency. The officer who had the exe- 
cution in charge, before demanding the amount of complain- 
ant, had, in vain, sought for property of the Lynams, on 
which to levy it. 

. We can not imagine a clearer case of a right to call upon 
a co-surety for contribution than this. 

Something is said by appellants about the omission to make 
the Lynams parties to this bill. They being insolvent, were 
not necessai'y parties. This is the uniform doctrine in equity, 
where the object sought is a pecuniary contribution only. 
Story's Eq. PL sec. 1,69. 

The decree is affirmed, there being no error in the record. 

Decree affirmed. 



George Hiner 



Christopher Jeanpert et al. 

1. Highway — evidence of a dedication. Wlieve a road had been trav- 
■eled for over thirty years, and was not a mere neighboi'hood track through 
uninclosed woodland, but a well defined traveled road between impor- 
tant points in the neighborhood, and the travel varied not more than usual 
from the main beaten track, and the public authorities, with the knowl- 
edge of the former owners of the land over which it passed, made repairs, 
and built bridges where needed: ZTeW, that the loug iwe;- by the public, 
and the acts of acceptance by the authorities in making repairs and build- 
ing bridges where needed along the line of the road, and the acquiescence 
of the grantors of the owner contesting the road, fully justified the jury- 
in inferring a dedication and the existence of a highway. 

2. A highway may be lawfully established by public user and recog- 
nition by the public authorities, and acquiescence of the owners of the 



1ST2.J HiNER f. Jeanpert e^ a^. 429^ 

Opinion of the Court. 

land over wliicli it passes. No express words of dedication are necessary, 
and consent may be inferred from acquiescence, and user by the public; 
and user does not depend upon any fixed period of time. 

3. Ijststructions. Although the instructions given may have been 
more numerous tlian they ought to be, and some of them not as accurately 
drawn as they should have been, yet if they are not calculated to preju- 
dice the other party's cause, and the finding of the jury is fully warranted 
by the evidence, this will furnish no sufiicient cause for a reversal. 

Appeal from the Circuit Court of Tazewell county ; the 
Hon. Chaeles Turner, Judge, presiding. 

This was an action of trespass commenced before a justice 
of the peace in Tazewell county, by George Hiner against 
Christopher Jeanpert and William Corney. The alleged tres- 
pass consisted in the breaking down of the fences and enter- 
ing the close of the plaintiff, by the defendants. The act was 
justified upon the ground that the place where the alleged 
trespass was committed was a public highway. The cause 
was removed into the Circuit Court, where a trial resulted in 
a verdict and judgment in favor of the defendants. The 
plaintiff appealed. 

Mr. John B. Cohrs, for the appellant. 

Mr. G. F. Saltonstall, for the appellees, 

Mr. Justice Scott delivered the opinion of the Court: 

There is but a single question presented by this record. It 
is whether there was a public road at the place where the 
trespass was committed. It is a question of fact, and has 
been passed upon by two juries, both of whom found the ex- 
istence of the road, and Ave are unwilling to disturb their 
finding on account of any error assigned. 

The evidence of a number of witnesses familiar with the 
premises was taken, and it appears that there was a traveled 
road at the point in dispute for many years — one witness 
fixing the period at thirty-eight years, and two others fixing 



430 HiNEE f. Jeanpert et al. [Sept. T., 

Opinion of tlie Court. 

it at over thirty years. It was not a mere neighborhood 
track through uninclosed woodland, where people traveled 
as best suited their convenience, but a well defined, traveled 
road between important points in the neighborhood. The 
travel varied but little, not more than usual, from the main 
beaten track. The public authorities, with the knowledge 
-of the former owners of the land, did work on the road as a 
public highway, made repairs and built bridges where needed, 
not, perhaps, on the land owned by appellant, but near by. 
During the entire period mentioned by the several witnesses, 
the owners of the land over which the road passes, with only 
a few exceptions, acquiesced in its use by the public with the 
knowledge that the authorities claimed to exercise jurisdic- 
tion over it as a public highway. 

From the long user by the public and the acts of accept- 
ance by the authorities in making repairs and building 
bridges where needed along the line of the road, and the 
acquiescence of the grantors of appellant, the jury were 
fully authorized to infer a dedication, and the existence of a 
lawful highway at the point where the alleged trespasses were 
committed. Warren v. The Trustees of Jacksonville, 15 111. 240; 
Ahordy. Ashley, 17 111. 363; Dimon v. Tlie People, 17 111. 
416. 

A highway may he lawfully established by public i/ser and 
recognition by the public authorities, and acquiescence of 
the owners of the land over which it passes. No express act 
of dedication is necessary, and consent may be implied from 
acquiescence, and user by the public, and the user does not 
depend ujion any fixed period of time. The appellant himself 
recognized the existence of a lawful road at the point in con- 
troversy by tlie act of signing a petition to be presented to the 
proper authorities to have it changed. 

Objections are taken to instructions given on behalf of^ 
appellees. While they are much more numerous thai^ 
the importance of the case required, and some of them not a| 
accurately drawn as they should liave been, we can discovi 



1872.] Bradley v. Barbour. 431 



Syllabus. 



nothing in them that was calculated to prejudice the cause 
of appellant before the jury. It would be a singularly 
constituted mind that could have been misled from the true 
issues involved by any error pointed out in the series of in- 
structions. Indeed we do not think the jury were misled. 

The verdict is fully warranted by the evidence, and no error 
appearing in the instructions that could materially affect the 
merits of the case, the judgment must be affirmed. 

Judgment affirmed. 



Charles Bradley 

I'. 
John E. Barbour. 

1. Pleading — sufficiency of a plea of non-assumpsit. To a declaration 
counting upon a joint liability as partners, the defendant, who was alone 
served with process, filed the plea of the general issue, which, after the 
formal part, alleged " that he did not undertake and promise in manner 
and form as the said plaintiff halh above thereof complained against him," 
etc. The circuit court sustained a special demurrer to this plea, because 
the defendant did not aver that he, together with his co-defendant, did 
not undertake or promise: Held, ihaX the coiu't erred in sustaining the 
demurrer. 

2. Same — office of the words, " manner and form." It is a form com- 
monly in use to aver that the party did not do so and so, " in manner and 
form," as alleged. The use of those words covers matters of both sub- 
stance and form, and saves the necessity of repeating at length the allega- 
tions sought to be brought within the scope of the traverse. 

Appeal from the Superior Court of Cook county ; the Hon. 
William A. Porter, Judge, presiding. 



432 Bradley v. Barbour. [Sept T., 

Opinion of the Court. 

Messrs. Knowltox, Smith & Scales, for the appellant. 

Messrs. King, Scott & Payson, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was assumpsit, against two defendants, the declaration 
countino^ upon a joint liability upon a promissory note alleged 
to have been made by them as partners. Appellant, Bradley, 
was alone served with process. He appeared, and filed the 
plea of the general issue, which, after the formal part, was as 
follows: "That he did not undertake and promise in man- 
ner and form as the said plaintiff hath above thereof com- 
plained against him," etc. 

To this plea there was a special demurrer. The cause 
alleged was, ''that said plea simply avers that said defend- 
ant Bradley, did not undertake or promise, etc., instead of 
averring, as it should do, that he, together with said Lott 
Frost, did not undertake or promise, etc." 

The court below sustained the demurrer to appellant's plea, 
assessed plaintiff's damages and rendered judgment. The case 
was brought to this court by appeal, and various errors are 
assigned, none of which are worthy of consideration, except 
that of sustaining the demurrer to the plea of non-assumpsit. 

It has been held that the omission from this plea of the 
words, "or promise," would be bad on demurrer, but that 
the plaintiff could not sign judgment as for want of plea. 
3 Chit. PI. 908, and cases in notes. But that is not here one 
of the causes for demurrer; for, in showing cause for demur- 
rer, the pleader expressly states that the plea "avers that 
said defendant Bradley, did not undertake or promise," etc. 
If the plaintiffs attorney chose to construe the word "and" 
as "or," which he has done, it must be regarded as a waiver 
of that objection, when another and different one is specified. 
We do not think the cause which was assigned is sufficient. 
The precise point is this: The declaration was upon a joint 



1872.] Beadley v. Barbour. 433 

Opinion of the Court. 

promise alleged to have been made by appellant, and another, 
who was not served. The appellant, by his plea, says that 
he did not undertake and promise in manner and form as the 
plaintiff had in his declaration complained against him. 

The appellee's counsel insist that this is not a good tra- 
verse of the declaration, because this defendant did not say 
that he and Frost did not undertake, etc. 

If the averment in the plea had been as appellee says it 
was in his demurrer — ''did not undertake 07' promise," etc. — 
we would be unable to see why it was not a complete traverse 
of the joint undertaking, as well as every other material fact 
alleged in the declaration. 

It is a form commonly in use ^o aver that the party did not 
do so and so, "in manner and form" as alleged. The use 
of those words covers matters of both substance and form, and 
saves the necessity of repeating at length the allegations sought 
to be brought within the scope of the traverse. Stephens on 
PL pp. 52, 189. 

The case of Butnian v. Abbot, 2 Greenlf. 362, cited for ap- 
pellee, is one, if a decision upon the point, we could not 
approve. It is sustained by neither reason nor authority, and 
pushes technicality to an extreme degree. But the case went 
off upon other points, and what the judge says about such a 
plea being bad on demurrer, is mere obiter. 

We are of opinion that the court erred in sustaining the 
demurrer to the plea of non-assumpsit. 

The judgment will be reversed and the cause remanded. 

Judgment reversed. 



28— 65th III. 



434 City of Ottawa v. Sweely et al. [Sept. T., 

Statement of the case. 



The City of Ottawa 

V. 

John Sweely et al. 

1. Damages, exckssxve— for personal injury tlirougli negligence of city. 
Where the plaintifi" received a fall upon the sidewalk, in consequence of 
the negligence of the city authorities in keeping the same in proper repair, 
causing the loss of the use of her arm, from a gradual wasting away of 
the muscles, attended with constant pain, a verdict for $3200 damages was 
held not excessive as compensation for the actual injury sustained. 

2. In cases of personal injuries arising from negligence in municipal 
corporations, the damages must be such as to afford compensation. They 
must be commensurate with the injury. For injuries to the person, it is 
extremely difficult, if not impossible, to fix any limit other than the char- 
acter of the injury. 

3. New trial — in cases of tort. Verdicts in cases of tort are not be- 
yond the control of the courts; but they should be allowed to stan'd, unless 
they are grossly erroneous, or there is a palpable misconception of the 
testimony, or they are the plain result of passion or prejudice. 

Appeat. from the Circuit Court of Grundy county; the Hon. 
JosTAH McEoBERTS, Judge, presiding. 

This was an action on the case, by the appellees against 
the appellant, commenced in the county court of La Salle 
county, and taken, by change of venue, to the circuit court 
of Grundy countv. 

The declaration alleged, in substance, that, on October 22, 
1869, the defendant was, and ior a long time had been, a cor- 
poration in T.a Salle connty; that within the corporate limitsJ 
of defendant there was. at the time, etc., a certain sidewalk! 
along Main street; that it was the duty of defendant to keep! 
and maintain said sidewalk in good order; but defendant,! 
di.sregarding its duty in that respect, negligently allowed saic 
sidewalk to become out of repair, and negligently allowed 
certain plank in said walk to remain in a loose and danger- 
ous condition; that on, etc., the plaintiff Hannah Sweely,] 






1872.J City of Ottawa v. Sweely et al. 435 

Opinion of the Court. 

wife of the plaintiff John Sweely, while passing over and 
along said sidewalk, with reasonable care, stepped upon and 
against said plank, and was, without her fault, tripped and 
thrown with great violence, etc., and injured her person, arm 
and hand, and that, by reason of said injuries, she will lose 
the use of said arm and hand, to the damage of plaintiffs 
$15,000, etc. 

Messrs. Dickey, Boyle & Richolson, for the appellant. 
Mr. E. F. Bull, and Mr. S. W. Harris, for the appellees. 
Mr. Justice Thornton delivered the opinion of the Court : 

This suit was brought to recover damages for injuries re- 
sulting from a fall occasioned by a defective sidewalk. The 
liability of the city to some judgment is proved beyond con- 
troversy. Negligence sufficient to create a liability, to some 
extent, is virtually conceded. 

The question seriously, earnestly and ably urged upon our 
consideration, is as to the excessive amount of the verdict. 
We have read, with care and deliberation, the testimony, for 
the purpose of determining the fairness and justice of the 
finding. 

There have been two trials before a jury. The first ver- 
dict was for $8300, when the court granted a new trial. The 
verdict at the last trial was for $3200. The able and learned 
judge below, who heard all the evidence, and who was fully 
cognizant of the feeling and interest, and capacity, of the 
several witnesses, and knew their means of information as to 
the particular injury, refused to disturb the verdict. Why 
should we do so ? The power is conferred upon us by tiie 
statute, but it should be exercised with caution and prudence, 
and not arbitrarily. 

It is said that the verdict must have been the result either 
of svmpathy for the distressed woman, who exhibited her 
emaciated arm and hand before the jury, or of prejudice 
against the municipality. 



436 City of Ottawa v. Sweely et cd. [Scjit. T., 

Opinion of the Court. 

Prejudice and passion should never influence the delibera- 
tion or determine the conclusion of a jury; and if a court 
can discover them lurking anywhere, the verdict should be 
set aside. There is none apparent in this case, unless it be 
inferred from the amount of damages. 

The injury, if the result of the fall, is the loss of the use 
of an arm, perhaps during life. If the condition of the hand 
and arm is attributable wholly to the fall, is it true that the 
damages are excessive ? How shall the loss sustained be 
measured ? By what process, in arithmetic, shall we sum it 
up ? Who would exchange an arm or a leg for the paltry 
sum? There is no absolute rule to guide; no basis upon 
which to build; no principle which can control all cases. 
The damages must be such as to afford compensation. They 
must be commensurate with the injury. For injuries to the 
person, it is extremely difficult, if not impossible, to fix any 
limit, other than the character of the injury. We should be 
reluctant to hold that the sum given was excessive compensa- 
tion for the loss of an arm. 

It must not be supposed, however, that verdicts in cases of 
torts are beyond control; but they should stand, unless they 
are grossly erroneous, or there is a palpable misconception of 
the testimony, or they are the result plainly of passion or 
prejudice. 

But it is strenuously contended that the woman, for years 
prior to the injury, had in her hand progressive paralysis; 
that it was incurable; that the treatment for it had only a 
temporary effect; that tlie fall did not, and could not, cause 
the present paralysis, and that the present condition of the 
arm is the result of the lormer paralysis of the hand, and not 
of the injury. These positions are sustained, to a very great 
extent, by the medical witnesses called by the defendant. One 
of them went so far as to deny, and express disbelief in, the 
sworn statement of the party injured as to her soreness, be- 
cause it was in opposition to his theory, built, as he said, upon 



I 



1872.] City of Ottawa v. Sweely et al. 437 

Opinion of the Court. 

all the testimony that had been recorded, and upon his own 
observation and experience. 

A very strong case, indeed, was established by these wit- 
nesses against any probable, if not possible, injury from the 
fall, if their theories are to be taken as truth. Can the 
theories be accepted as absolutely true? Can they be re- 
ceived to overthro^v the positive and sworn statements of the 
injured party and her husband as to the pain and soreness of 
the aifected part, consequent upon the fall? Is theory to be 
taken instead of actual sensation ? 

The medical witnesses testified as experts, and upon the 
supposition that the woman had paralysis for near four years 
before the fall upon the sidewalk ; that she had not only lost 
the use of her hand, but it had become smaller than the 
other, and, to a certain extent, had withered away, and that 
there was a wasting of the muscles. Such was the supposi- 
titious case to elicit the opinions of the experts. 

What were the facts as obtained from a witness who per- 
sonally examined the party, and to whom she came for treat- 
ment just before the accident? For three years prior to 
this time there had been some want of action in the hand — 
an inability to grasp things. Dr. Olin, who saw her and 
treated her from two to four weeks, testified that, during the 
fall before the accident in October, the arm was full and the 
hand also — full muscular development of the parts — no atro- 
phy — no wasting of the muscles of the arm or hand — nothing 
more than would be in a hand which was not used; and that 
there was a gradual and perceptible improvement under his 
treatment. 

The experts testify upon the supposition that there was 
atrophy at the time of the fall, and that it is a necessary con- 
sequence of paralysis. This wasting of the muscles would, 
then, certainly have exhibited itself before the lapse of four 
years from the commencement of the affection. 

One of the experts testified that paralysis, in and of itself, 
is not painful ; another, that the books represent, as a general 



438 City of Ottawa v. Sweely et al. [Sept. T,, 

Opinion of the Court 

rule, that it is not painful, but expressed his opinion that if 
the paralysis was not perfect, and the nerves of sensation were 
intact, it is liable, as any other disease, to have pain. 

If the woman and her husband, and Dr. Olin, are to be 
credited, this was not a case of perfect paralysis, even after 
the fall, or there would have been no pain. The fall, then, 
must have improved and benefited the paralysis which existed 
before, according to theory. The direct testimony is that, 
before the injury, there was no sensation of pain; afterwards, 
it was constant. 

The experts were forced to this dilemma. If the testimony 
was true, they must abandon their theory. Hence, they chose 
to adhere to theory, and deny any belief in the sworn state- 
ment of the woman who actually experienced the suffering, 
and the husband, who witnessed it. The theory adopted was 
that there must have been pain before the injury, as there 
could have been none afterwards, except of a temporarv char- 
acter. To maintain the theory, the witnesses must be pro- 
nounced perjured. We can not accept the conclusion. 

There is, likewise, some discrepancy between the exjierts 
and their medical books, as they referred to them. 'J'liey 
stated that if one part be totally paralyzed, the whole body 
would be the same; and if one part be partially paralyzed, the 
whole body would be the same; and that an injury to tiie arm. 
unless it severed the whole arm, and crushed it badly on all 
sides, could not produce paralysis of the arm : and that there 
is scarcely a probability of the cure of paralysis. 

Yet medical books were referred to which speak of cases 
of paralysis which have been cured; and Dr. Stout admitted 
that good medical authority had reported cures of progressive 
paralysis; and Dr. Paul also testified that tliere are reported 
cases which had been cured. 

Dr. Hand conceded that Dr. Hammond, in his work, re- 
ported the case of a fiiro dealer who had paralysis in his 
thumb and forefinger, from a long and continued use of them; 



1872.] McCoy r. The People. 439 

Sj'llabus. 

and also a case of paralysis, or partial paralysis, from stand- 
ing on one leg for a long time. 

It is useless further to recapitulate the evidence. In the 
midst of the uncertainty as to the probable effect of the fall, 
and the real character of the disease prior to the injury, we 
are unwilling to disturb the verdict. 

The jury might well have applied the ancient proverb — 

" When Doctors disagree, 
Disciples then are free." 

The judgment is affirmed. 

Judgment affirmed. 



Archibald McCoy 



The People of the State of Illinois. 

Bastardy — sufficiency of evidence to sustain charge. In a prosecution for 
bastardy, the only proof of the charge was the unsupported testimony of 
the complainant, who testified that she gave birth to the child on the 15th 
of August, 1871 ; that it was the result of a single act of illicit intercourse 
with the defendant in the middle or latter part of November, 1870, and 
that that was the only time she ever had intercourse with defendant or 
any other person. The defendant, in his testimony, denied the charge in 
all its parts, and proved, by another witness, that he had frequent sexual 
intercourse with complainant in October and November, 1870, and that 
she informed him of her pregnancy and asked him what he was going to 
do about it. Two other witnesses testified that they surprised her in sex- 
ual intercourse with another person in October or November, 1870. She 
informed her father that the father of the child lived in a different county 
fiom that of defendant. Defendant's witnesses were in no way impeached, 
except a certain matter was urged against their credibility: Held, that 
taking the whole testimony together, it was not sufficient to sustain a ver- 
dict finding the defendant to be the father of the child 



440 McCoy v. The Pkuple. [Sept, ^., 



Opinion of the Court. 



Appeal from the Circuit Court of Ogle county ; the Hon. 
W. W. Heaton, Judge, presiding. 

Mr. E. F. DuTCHER, and Mr. E. F. Bull, for the appel- 
lant. 

Messrs. Eustace, Barge & Dixon, for the appellees. 

Mr. Justice Sheldon delivered the opinion of the Court : 

The proof of the charge of bastardy made in this case rests 
upon the unsupported testimony of the complainant. 

She testified that she gave birth to the child on the 15th 
day of August, 1871 ; that it was the result of a single act 
of illicit intercourse between herself and the defendant, in 
the middle or latter part of November, 1870, and that that 
was the only instance of such intercourse she ever had with 
the defendant or any other person. 

On the part of the defense, the defendant, by his own testi- 
mony, denied the charge in all its parts. 

Another witness testified that he himself had sexual inter- 
course with the complainant as often as once, and sometimes 
twice, a week, during the months of October and November, 
1870, and that during her pregnancy she informed him of her 
condition, and inquired of him what he was going to do about 
it. Two other witnesses testify to having surprised the com- 
plainant and still another person in the direct act of sexual 
intercourse, in October or November, 1870. 

The complainant had informed her own father that the father 
of the child lived atShannon,in another county, that of Carroll; 
in consequence of which, her father went there to see the per- 
son on the subject. The defendant never lived at that place, 
as the complainant herself testified. This was a circumstance 
affecting the credibility of her testimony. 

The witnesses on tiie part of the defendant were in no way 
attempted to be impeached, save that, as to two of them, it 
was relied upon as detracting from their credibility, that, pre- 
vious to the making of the complaint in this case, they had 



1872.] Seaver v. Spink. 441 



Sj'llabus. 



made voluntary affidavits, before a justice of the peace, of the 
facts which they testified to on the trial. 

In view of the whole testimony, a majority of the court re- 
gard it as too unsatisfactory to fix the paternity of the child 
upon the defendant, and the court below should have set aside 
the verdict as being clearly against the weight of evidence 
and have granted a new trial. 

The judgment is reversed and the cause remanded. 

Judgment reversed. 



Abraham W, Seaver 

V. 

Alfred Spink. 

1. Bankruptcy — conveyance, under sec. 35 of the hankmpt act, whether 
fraudulent or not. Where a bankrupt executed a deed of trust to secure a 
bona -fide indebtedness several years prior to the filing of the petition in 
bankruptcy, but the same was acknowledged and recorded only about two 
months prior to that date, and there was no complicity on the part of the 
creditor to enable the debtor to procure credit, or even laches on his part 
in not recording the deed, from the fact that he had been imposed upon 
by forged certificates of acknowledgment and of record : Held, that the 
deed of trust was not aftected by the 35th sec. of the bankrupt law, but 
was valid. 

2. The non-registry of a deed of trust in no way affects its validity under 
the bankrupt law ; neither does the fact that it was not acknowledged by the 
grantor, as it is good and valid between the parties, and also as to creditors 
with notice, without acknowledgment. 

3. Registry op deed. The creditor holding a deed of trust is under 
no obligation to record the same for his own protection, except as against 
subsequent purchasers and judgment creditors; and admitting that the 
assignee in bankruptcy of the grantor occupied such position, yet if the 
instrument is recorded before the filing of the petition in bankruptcy, the 
latter can claim no priority of the deed of trust. 



442 Seavkr r. Spixk. [Sept. T., 

Opiniou of the Court. 

Appeal from the Circuit Court of ^Yinnebago county; the 
Hon. William Browx, Judge, presiding. 

This was a bill in chancery, filed by the appellee, assignee 
in bankruptey of William W. Wood & Co., to set aside, as 
fraudulent and void, a deed of trust executed by William W. 
Wood and wife to Rufus Stratton. to secure the payment of a 
note of $8000, payable to the appellant. The grounds upon 
which this deed was sought to be avoided under the bankrupt 
law of the United States, appear in the opinion. The cause 
was heard upon the bill, answer of appellant, replication 
thereto, and proofs, and decree pro confesso as to the other de- 
fendants. The court below held the deed of trust fraudulent 
and void under the 35th section of the bankrupt act. 

Mr. John J. McKinnon, and Mr. A. H. Lawrence, for 
the appellant. 

Messrs. Tenney, McClellan & Tenney, for the appellee. 

Mr. Chief Justice Lawrence delivered the opinion of the 
Court : 

In this case no question is made as to the indebtedness from 
Wood to Seaver, but it is contended that the deed of trust is 
void as against the assignee in bankruptcy of Wood, under 
the 35th section of the bankrupt law. That section avoids 
all conveyances bv the bankrupt made within four months 
prior to filing the petition, for the purpose of giving a prefer- 
ence to any creditor, if such creditor has reasonable cause to 
believe the grantor is insolvent, and the conveyance is made 
in fraud of the bankrupt law. 

In the case at bar the conveyance was in fact made and de- 
livered several years prior to tiie filing of the petition in bank- 
ruptcy, but was acknowledged and recorded only about two 
months prior to that date. 

It is not denied that Wood was insolvent, or that Seaver 
knew that fact at the date of recording. All presumption, 



1872.J Seaver v. Spink. 443 

Opiuiou of the Court. 

however, of complicity with AVood for the purpose of enabling 
him to procure credit, or even of laches in not recording the 
deed, is repelled by the proof that Seaver, who lived in Mas- 
sachusetts, had been imposed upon by forged certificates of 
acknowledgment and of record. Until he sent his agent to 
collect the debt, about two months before the bankruptcy, he 
supposed his deed had been acknowledged and recorded from 
the time of its execution. 

We can not see that the deed of trust in this case falls 
within either the letter or spirit of the 35t.h section of the 
bankrupt act. This deed was not made within four months 
prior to filing the petition. So far as the grantor was con- 
cerned, the act was completed when the deed was executed 
and delivered, and Seaver was under no obligation to reduce 
the deed to record for his own protection, except as against 
subsequent purchasers or judgment creditors. Admit that 
the assignee in bankruptcy stands in the position of either or 
both these classes, and that his title relates back to filing the 
petition, still he can claim no priority over the deed of trust, 
recorded as it was before the petition was filed. Our statute 
gives him none, and the 3oth section of the bankrupt act gives 
him none. That avoids, as against the assignee, only instru- 
ments made within the four months prior to the petition. But 
this instrument was not so made. It was, on the contrary, 
made and delivered years before, and its non-registry in no- 
wav affects its validity, except under our recording laws. Its 
validitv under the 35th section of the bankrupt act does not 
depend upon the fact of registry, and no other provision of 
that act is cited as bearing upon this question. Registry is 
important only under our own statutes, and it is not claimed 
that the deed is void as against the assignee under them. 

The error of counsel for appellee lies in the assumption that 
a further act of Wood was necessary to complete the deed, 
and that such act was performed by him within the four 
months by acknowledging the deed. But the deed was wholly 
complete without such acknowledgment, and if recorded, aa 



444 Seavee v. Spike:. [Sept. T., 

Opiuiou of the Court. 

it might have been, would have been notice to creditors and 
purchasers. (Sec. 28 Rev. Stat, of 1845.) 

The only consequence of a want of the usual certificate of 
acknowledgment would have been that Seaver, if under the 
necessity of using the deed as evidence, would have been 
obliged to prove its execution. 

Counsel speak of the acknowledgment by Wood as " indis- 
pensable," and say, in another paragraph, that the deed "was 
void as to creditors, and could only be made operative by the 
further act of Wood." They, therefore, insist that the deed 
should be considered as made by Wood within the four 
months. But this is all an error. Wood's acknowledgiment 
was not indispensable, and no further act of his was necessary 
to make the deed operative as to creditors. It could have 
been recorded without his acknowledgment, and would have 
been valid without registry, even as against creditors and 
purchasers, if they could be charged with actual notice. 

Tlie views we have expressed are in precise accordance with 
an opinion delivered in a similar case by Mr. Chief Justice 
Chase, wliile holding a circuit court in Virginia. I)ire Wynne, 
i) American Law Register, 627 ; cited also in Bump on Bank- 
ruptcy, 402. 

Counsel for appellee cite the case of Harvey v. Crane, de- 
cided in the circuit court of the United States for the JS^orth- 
ern District of Illinois, and reported in 3 Chicago Legal 
]Sews, 341, as holding a doctrine contrary to that announced 
in the case of Wynne. But on examining the opinion in Har- 
vey V. Crane, supra, we Hud the question presented was very 
different from that before us. Tiie mortgage in question there 
was a chattel mortgage, void upon its face as to creditors. It 
was valid only as between the parties. Whether creditors 
had notice of it or not, was immaterial, as it was but a blank 
piece of paper as to them. 

In the case before us the deed is valid, not only as between 
the parties, but as to creditors and purchasers having actual 
or constructive notice. But in that case the mortgagee took 



1872.] Seaver v. SriNK. 445 

Opinion of the Court. 

actual possession of the goods under his void mortgage twenty- 
three davs before the petition in bankruptcy was filed, and 
the question was as to the eifect of that possession. The de- 
cision -we understand to be expressly placed on that ground. 
The question was, substantially, what it would have been if 
possession had been transferred without a mortgage. The 
3oth section of the act therefore applied. 

The court says, in conclusion, that the defendant can not 
rely on the mortgage, because it is invalid under the law of 
the State, nor on the possession, because it was taken under 
an invalid mortgage. 

As we understand the view of the court, the possession was 
thus left to depend on the validity of the actual transfer made 
twenty-three days before filing the petition, and this transfer 
was invalid under the bankrupt act. 

We do not regard that case as in conflict with the views we 
have expressed It turned upon diiferent questions from those 
presented by this record. 

The decree of the circuit court is reversed and the bill dis- 
missed. 

Decree reversed. 

At a subsequent term it was ordered that the foregoing 
order of reversal and dismissal be taken to mean that the de- 
cree is reversed and the bill dismissed only as to the appellant^ 
Seaver. 



446 IXGEAHAM v. LuTHEK. [Sept. T., 



Opinion of the Court. 



James Ingkaham 

V. 

Henry Luther. 

Pleading and evidence — variance. In an action on a promissory note 
against the maker, where the plaintiff' declares on the note as payable to 
himself, the defendant may, under the general issue, prove that the note 
was payable to a person other than the plaintiff", and such being the evi- 
dence constitutes a variance which is fatal to a recovery. 

Appeai-, from the Circuit Court of Warren county ; the 
Hon. Arthur A. Smith, Judge, presiding. 

Mr. "William Marshai>l, for the appellant. 

Mr. John J. Glenx, for the appellee. 

Mr. Justice Walker delivered the opinion of the Court : 

This was au action of assumpsit, brought by appellee in the 
Warren circuit court against appellant, on a promissory note 
payable to " H. Luther." Appellant filed a plea of non-assump- 
sit verified by affidavit, and on the trial offered to prove the note 
was executed and delivered to Hulbert Luther, and not to 
appellee, but the court rejected the testimony, admitted the 
note in evidence, after appellant had admitted that he had 
signed it. The jury found a verdict in favor of the plaintiff, 
and the court below, after overruling a motion for a new trial, 
rendered judgment on the verdict, and defendant prosecuted 
this appeal. 

Tlie object of introducing the evidence which was rejected 
was to prove that the legal title to the note sued on, was in 
anotiier person, and that appellee had no legal right to main- 
tain the action in his own name. See Hilborn v. Kceler, 3 
Scam. 344; Roosa v. Crist, 17 111. 451 ; Keeler v. Campbell, 24 
111. 287. It is an elementary rule of practice that an action 
can only be maintained by the person having the legal title 



1872.] Wells v. Carpenter. 447 

Syllabus. 

to the chose in action or the title to the thing in dispute or 
the right to its immediate possession. 

Appellee contends that advantage could only be taken of 
tlie fact that he was not the owner of the note by plea in 
abatement for a misnomer. This is not a question of mis- 
nomer, but a question of variance. Appellee avers in his 
declaration that the note was payable to him, which was de- 
nied by the general issue, and appellant had the right under 
that plea to prove the note was payable to another person. 
It ^vas so held in Simmons v. Waterman, 17 111. 371. That 
case is in point, and must control the decision of this. The 
court below having erred in rejecting the evidence offered by 
appellant, the judgment of that court is reversed and the 
cause remanded. 

Judgment reversed. 



David G. Wells 

V. 

Henry S. Carpenter. 

1. Paktnership — sale hy one to tlie other partner after dissolution. — 
remedy whether legal or equitable. A and B, partners in the grain trade, 
and flour and grocery business, dissolved the partnership by dividing the 
business so that A took the grocery business on his own account, with 
all its profits and liabilities, and B the grain business on the same terms. 
Soon after, A, being sick, got B to take the grocery olf his hands, B agree- 
ing to pay A the capital he had put into the original partnership in pay- 
ment for the sale of the grocery to him, " as soon as he could do so with- 
out inconvenience:" Held, in an action at law by A against B to recover 
the price agreed to be paid, that the sale had no connection with the prior 
partnership dealings, or at least not such a connection as made a resort to 
a court of equity necessary, it not being necessary to adjust the losses and 
profits to ascertain the capital stock put in by A. 



448 Wells v. Caepentee. [Sept. T., 

Opinion of the Court. 

2. Construction — rule for construing contract. The true principle of 
sound ethics is, to give a contract the sense in which the person making 
the promise believed the other party to have accepted it, if he in fact did 
so understand and accept it. 

3. Contract — construed as to time of payment. Where a party made a 
sale, the purchaser agreeing to pay the purchase money as soon as he 
could without inconvenience, and the proof showed that the purchaser 
told the witness that he was to pay the seller " back his money as fast as 
he could collect it up and get straightened up:" Held, that from this it 
would be implied that payment was to be made within a reasonable 
time, and the suit not having been brought until one year after, a recovery 
was affirmed by this court. 

Appeal from the Circuit Court of Will county ; the Hon. 
JosiAH McRoBEETS, Judge, presiding. 

Mr. Thomas H. Hutchins, and Mr. G. D. A. Paeks, for 
#he appellant. 

Messrs. Olin & Phelps, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court: 

This was an action of assumpsit, in the Will circuit court, 
brought by Wells against Carpenter, who had been partners 
in a grocery store, for Wells' share of the stock which Well& 
had sold to Carpenter after dissolution of the partnership. 

These parties had been partners in the grain trade, and 
flour and grocery business, into which Wells had put three 
thousand six hundred and seventy-six f^ dollars as his pro- 
portion of the capital. The partnership commenced about 
the middle of May, 1868, and was dissolved about the last 
day of June of the same year ; Carpenter to assume the grain 
business with all its profits and liabilities, and Wells the 
grocery business on the same conditions. 

This was fully carried out. In about one week after Wells 
had taken the grocery under his control, from sickness or 
other cause, he was unwilling to give it any further attention, 
and proposed to Carpenter " to take it off his hands." This^ 



1872.J Wells v. Caepentee. 449 

Opinion of the Court. 

after considerable discussion and hesitation, Carpenter con- 
sented to do, agreeing at the same time to return to Wells 
the money he had put into the concern "as soon as he could 
without inconvenience." 

Wells then retired wholly from the business, Carpenter 
conducting it on his own account. 

In about three weeks subsequent to this, on the 27th of 
July, Carpenter sold the entire grocery store to Clark and 
Moreland, and put them in possession. Wells had nothing 
to do with this sale. The purchasers paid Carpenter, and 
Wells' name was not mentioned in the transaction. They 
were a week or ten days negotiating before they purchased. 
After this sale to Clark and Moreland neither Wells nor 
Carpenter had any thing to do with the store. Moreland paid 
in part with land which he conveyed to Carpenter. 

The defendant rested his defense on the ground that plain- 
tiff's claim grew out of a partnership transaction, or business 
which had never been settled ; that there never had been a 
balance struck between them, and that defendant never prom- 
ised to pay any specified sum. 

The court trying the cause, a jury having been waived, 
found for the plaintiff, and assessed his damages at the amount 
of his capital stock with interest. 

The defendant appeals, and makes the same point here, 
that it was a partnership transaction, and no balance having 
been ascertained, and no promise to pay any specified sum, 
an action at law can not be maintained, the only remedy being 
in equity. 

It is true, a partnership once existed between these parties, 
the plaintiff selling out his interest to the defendant, his co- 
partner, and he taking exclusive possession of the concern, 
and disposing of it soon after to Clark and Moreland. 

This trade, it does not seem to us, has any connection with 
their dealng, as partners, and such as could only be adjusted 
in chancery. It was made when no partnership existed 
29— 65th III. 



450 Wells v. Carpenter. [Sept. T., 

Opinion of the Court. 

between them, for Wells conducted the grocery business until 
July 8th on his own separate account and individual re- 
sponsibility. When the arrangement was made between them, 
on or about the first of July, the partnership was thereby dis- 
solved, and Wells, taking the grocery as his own, had as much 
right to sell it to his former partner in the concern, as he had 
to sell to him a horse or a farm. 

We are satisfied the rule that one partner can not bring an 
action at law against another partner except for a balance 
struck and a promise topay it, has no application. The reason 
of that rule has no existence here, because in order to ascertain 
the amount appellee is entitled to receive of appellant, no 
examination of partnership accounts is necessary, nor any 
inquiry into profits and losses, nor into any matter growing 
out of a partnership concern. No losses can be set up against 
appellee's claim, no investigation of accounts is involved, but I 
the simple demand is, that appellant shall pay to appellee 
the amount he put into the grocery, and which appellant 
promised to do. Lintner v. Millikin, 47 111, 178-184. 

But it is insisted by appellant, but we suppose not seriously, 
that he was to pay for this stock when it was convenient. 
AVells did testify, when he sold out to appellant, he left it 
all in his hands with the understanding he was to pay him 
back his money as soon as he could without inconvenience. 
Who was to determine the question of inconvenience? What 
the parties meant appears from Cagwin's testimony, Avho says 
that Carpenter told him he was to pay Wells back his money 
as fast as he could collect it up and get straightened up. This 
would imply a reasonable time, and one year elapsed before 
suit was brought. Tiiis must have been the sense in which 
the contract was understood by the parties. The true prin- 
ciple of sound ethics is to give the contract the sense in which 
the person making the promise believed the other party to 
have accepted it, if he in fact did so understand and accept 
it. 2 Kent's Com. 5oG. 



1872.] Caepentee u. Wells. 451 

Syllabus. 

Appellant's understanding of it is shown by the testi- 
mony of Cagwin, and it harmonizes with appellee's under- 
standing, as he gave appellant one year "to collect and get 
straightened up." 

There is no well founded pretense that the contract was 
Avithout consideration. The property was sold to appellant, 
he took it into his own exclusive possession, and in a few 
days thereafter sold it as his property to Clark and Moreland, 
and received payment therefor. Justice requires he should 
pay appellee. 

The error or shortage supposed to have been discovered in 
appellee's account amounts to nothing. Appellant was to pay 
back the amount appellee had put in — no more, no less. He 
has proved what he put in, and for that the court below ren- 
dered a judgment. 

We can not perceive any error in the record, and must 
affirm the judgment. 

Judgment affirmed. 



Henry S. Carpenter 

V. 

David G. Wells. 

1. Partnership — wlietTier a debt is a partnership affair. The defendant 
in this case, on settlement with A & B, partners in the grain business, was 
found indebted to them in seven or eight hundred dollars, and as A was 
about retiring from the firm, the defendant agreed to pay the same to him 
with the assent of B. A then entered into partnership with the defendant, 
and after the dissolution of the latter firm A sued him for the same. The 
defendant set up that the debt was transferred to the late firm, and went 
into it as partnership assets, and therefore no adjustment of the matter 



452 Carpenter v. Wells. [Sept. T., 

Opinion of the Court. 

could be had at law: ^eW, that it was incumbent on the defendant to 
show that this debt went into the firm account, or was used in the concern, 
by competent proof, to defeat a recovery. 

2. Jurisdiction — right to reduce demand to bring it within jurisdiction 
of justice of the peace. A creditor has the right to reduce his claim in or- 
der to bring it withia the jurisdiction of a justice of the peace. 

Appeal from the Circuit Court of Will county; the Hon, 
JosiAH McRoBERTS, Judge, presiding. 

Mr. Tno^fAS H. Hutchins, and Mr. G. D. A. Parks, for 

the appellant. 

Messrs, Olin & Phelps, for the appellee. 

Mr. Justice Breese delivered the opinion of the Court : 

The theory of appellant in this case is the same as in the 
next preceding case, that it was a partnership aifair, and na 
adjustment thereof can be had in an action at law. 

The facts are briefly these : Appellee had been a partner 
with one Cagwin, in the grain business. Appellant was a cus- 
tomer of that firm, and became indebted to it in the sum of 
seven or eight hundred dollars on a balance struck. This 
sum appellant agreed to pay appellee, he then retiring from 
the firm of Cagwin & Wells. On his doing so, he went into 
partnership with appellant in the grain trade and flour and 
grocery business. In a few weeks thereafter, this firm was 
dissolved, under circumstances detailed in the preceding case. 

The amount being above the jurisdiction of a justice of the 
peace, the claim was reduced to six hundred dollars, to bring 
it within that jurisdiction, and a judgment had for that 
amount, which, on appeal to the circuit court, was affirmed. 

Defendant brings the record here and makes this as his 
principal point, that this debt, so due by him to Cagwin & 
Wells, and which he had assumed to pay to Wells, was, by 
the consent and agreement of these parties when they formed 
their co-partnership, taken and considered as so much capital 



1872.] Chicago Buildi>"g Society v. Ceoweij. 453 

Syllabus. 

put into the concern by Wells, and on this hinges the whole 
controversy. 

The proof is overwhelming, whatever the intention of the 
parties may have been at the outset, that this sum never did 
go to the credit of appellee on the books of the concern, nor 
was it used in the concern during the continuance of their 
partnership. It is a bald case of a promise to pay an honest 
debt, and that promise unfulfilled. This eight hundred dol- 
lars, as the proof conclusively shows, never did go into the 
firm account, or into the business of the firm. If it did, it 
was the duty of appellant to show it by competent testimony. 
This he has wholly failed to do. 

As to the right of a creditor to reduce his claim in order to 
bring it within the jurisdiction of a justice of the peace, see 
Raymond v. Sti^obel, 24 111. 113. 

The judgment must be affirmed. 

Judgment affirmed. 



The Chicago Building Society 

V. 

Henry A. Crowell. 

1. Corporation, private — ^ower to contract for insurance. Under the 
act of 1869, authorizing the formation of incorporated companies, for the 
accumulation of a fund with which to purchase real estate in large tracts, 
paying oft' incumbrances thereon, and the sub-division of the same into 
lots suitable for homesteads, and the distribution of such lots among the 
shareholders, or to aid the shareholders in acquiring real estate, making 
improvements thereon and removing incumbrances therefrom, a company 
was incorporated, who made a loan, taking a deed of trust to secure its 
payment, and providing therein that the borrower should insure the build- 
ings. The secretary of the company insured for the first year, charging 



45-4 Chicago Building Society v. Crowell. [Sept. T., 

Statement of the case. 

the premium to the borrower, and insisted upon the right to insure for the 
next year, to which the borrower at first objected, but final!}' assented upon 
the secretary agreeing to make the insurance. The latter failed to do so, 
the buildings were destroyed by fire, when the borrower sued the com- 
pany for a failure to insure. The company objected that it had no 
authority to make such a contract : Held, that, as the company was author- 
ized to make the loan and provide for the security of the same, it followed 
as an incident that it had the right to provide for insuring propert}'^ taken 
in security, and that an action would lie for a breach of the agreement to 
insure. 

2. While it is true that public policy requires that corporations should 
be confined strictly within the limits of their charters, and not be allowed 
to exercise powers bej'ond those expressly conferred, that would be hurtful 
to the public interest, yet where they have exercised powers incidental to 
those conferred, and in furtherance of the general objects of the corpora- 
tion, although the subject of the contract may not be within any express 
right conferred, they will be estopped from denying that they had authority 
to make such contracts. 

3. Same — power of secretary presumed from circumstances. Where it ap- 
peared that the secretary of an incorporated company had, for some time 
prior, been making similar contracts in behalf of the companj-^, he having 
no personal interest in making the same, and the company received the 
benefits accruing from such contracts without objection: Held,X\\?A it 
would be inferred that he acted with the knowledge of the directors, and 
that he was authorized to make such contracts. 

4. Measure of damages — on agreement to procure an insurance. Where 
a defendant agreed with the plaintiff to have the buildings of the latter in- 
sured in some good company, and had made arrangements with a company 
for such purpose, but before the same was effected the buildings were 
burned, and it appeared that the company, in consequence of the great Chi- 
cago fire, had become insolvent, but was good when the arrangement was 
made: Meld, that tlie sum at which insurance was agreed to be made was 
not the proper measure of damages, but ouly such dividend as the insur- 
ance company would be able to pay in case the insurance had been per- 
fected before the loss. 

Appeai. from the Superior Court of Cook county; the Hon. 
Joseph E. Gary, Judge, presiding. 

In this case Henry A. Crowell procured a loan of money 
from the Chicago Building Society, for which he gave his note 
scoured by deed of trust upon certain real estate, and cove- 
nanted in such deed to keep the buildings thereon insured in 



1872.] Chicago Building Society v. Crowell. i^-*^ 

Opinion of the Court. 

such company or companies as the Building Society should 
designate. By a subsequent arrangement the society, through 
its secretaiT and managing agent, agreed with Crowell to pro- 
cure such insurance for him in the sum of $1000, but before 
the same was effected the buildings were destroyed by fire. 
Crowell thereupon brought suit against the society for a breach 
of the contract to procure the insurance, and a trial was had 
which resulted in a verdict and judgment in favor of the 
plaintiff for $1000, from which judgment the defendant ap- 
pealed to this court. 

Mr. James B. Bradwell, for the appellant. 

Messrs. Nissen & Barnum, for the appellee. 

Mr. Justice Scott delivered the opinion of the Court : 

The principal points relied on to reverse this judgment 
are — 

Fiist — That the contract made by the building society to 
procure the insurance upon the property of the appellee was 
ultra vires, not incidental to the purposes of the corporation, 
nor for its benefit, of which the appellee, being a member of 
the company, was bound to take notice. 

Second — In any event, the damages found by the jury are 
excessive. 

The jury having found the facts, we must regard the con- 
tract as having been made as alleged in the declaration. 
There is, however, no serious dispute in the evidence as to 
the nature and terms of the contract between the parties. 

Appellant is a building society incorporated under the act 
of 1869, entitled "An act to authorize the formation of cor- 
porations to provide the members thereof with homesteads or 
lots of land suitable for homesteads." 

Section one provides "that any number of persons not less 
than three may associate and form themselves into an incor- 
porated company, for the purpose of accumulating a fund for 



4o6 Chicago Building Society v. Cro'svell. [Sept. T., 

Opinion of the Court. 

the purchase of real estate In large tracts, paying off incum- 
brances thereon, and the sub-division thereof into lots and 
parcels suitable for homesteads, and the distribution of such 
lots or parcels among the shareholders or to aid the share- 
holders in acquiring real estate, making improvements thereon 
and removing incumbrances therefrom." 

The objects of said corporation are stated in article two of 
its articles of association, which is as follows : 

" Article 2. Its object shall be to facilitate the increase of 
capital by accumulation, to assist members thereof in the ac- 
quisition of real estate, in the erection of buildings, and in 
the removal of incumbrances upon property already held by 
them ; and for these purposes, to enable them to receive the 
amount of their shares in advance upon furnishing good mort- 
gage security." 

Appellee applied to the company and obtained a loan on 
the first of March, 1870, of §700, payable in monthly in- 
stalments of $21.33, and secured the same by deed of trust 
to William L. Greenlee, president of the association, in which 
appellee covenanted that he would keep all buildings that 
might be on said premises, during the continuance of said in- 
debtedness, insured in such company or companies as the 
holder or holders of said note might direct, for such sum or 
sums as such companies would insure for, not to exceed the 
amount of such indebtedness, except at the option of appellee. 

In accordance with the agreement of appellee to keep the 
mortgaged property insured for the benetit of appellant, on 
the sixth day of October, 1870, Brooke, the secretary, and, to 
some extent, the managing agent of the company, obtained a 
])()licy of insurance for §1000, in the State Insurance Company, 
running to appellee, for one year, and advanced the premium. 
The secretary furnished appellee with a pass book, in which 
he charged him with the §700 loaned, and also the §5 advanced 
for insurance, wiiich amount advanced for insurance was sub- 
sequently repaid by appellee, and credited to him, together 



1872.] Chicago Building Society v. Crowelt-. 457 

Opinion of the Court. 

with other payments, on the pass book. The secretary of ap- 
pellant retained the policy in his possession. 

Just before the expiration of the policy in the State Insur- 
ance Company, appellee went to the office of the building 
society and told the secretary that he would like to attend to 
his own business; that he had made application for insurance 
to an agent, as it was about to expire; that he thought the 
company had sufficient security for all the money he got 
of them, and that he would like to attend to his own insur- 
ance ; and the secretary, in reply, told him that the company 
would rather attend to the insurance themselves, and that 
they could get insurance at better rates than appellee could. 
It was finally agreed that the secretary should obtain a policy 
upon the property in the sum of $1000, as he had done the 
previous year. This was just before the fire of the 9th and 
10th of October, 1871, in which the property was totally de- 
stroyed. The secretary had previously made application to 
the Merchants' Insurance Company for a policy for the agreed 
amount, but no insurance had really been effected previous to 
the fire, and so the buildings upon the property were entirely 
lost to appellee. 

One ground upon which the liability of the company is re- 
sisted is, that the agreement to procure insurance for appellee 
was not incidental to the purposes of the corporation, nor for 
its benefit. 

The company was expressly authorized and empowered by 
the act of the legislature to make loans and provide for the 
security of the same on real estate, as well upon improved as 
upon unimproved property. As an incident to security upon 
improved z'eal estate, no reason is perceived why it may not 
be regarded as within the powers granted, that the corporation 
should have the right to contract for insurance on the im- 
provements on the property, to make more available and cer- 
tain their security, and such a contract would be for the benefit 
of the company. 



458 Chicago Building Society v. Crowell. [Sept. T.., 

Opinion of tlie Court 

It was SO expressly provided in the deed of trust, that appellee 
should keep the property insured in such company, and for such 
amount, as appellant should designate, not exceeding the amount 
of the indebtedness except at the option of appellee. It was 
in pursuance of this provision in his contract that appellee 
procured, or permitted the secretary to obtain, the insurance 
for the first vear, and contracted that he should procure it for 
the succeeding year. 

It was for the better securing of the loan made to appellee 
that the insurance was to be procured, and in this view it can 
hardly be said that it was not incidental to the legitimate pur- 
poses of the corporation, nor that it was not for its benefit. 
It was germane to the business that the corporation was trans- 
acting, and, in case of loss, would enure to its advantage. 

The liability of the company, however, is resisted mainly 
on the ground that there is no authority in the act of the 
legislature authorizing the incorporation of the company, or 
in the articles of association, for making the contract to pro- 
cure insurance for appellee, and because it is beyond the pow- 
ers expressly conferred, it is insisted that such contract is 
void and can not be enforced. 

It is said that there is nothing in the act of the legislature* 
authorizing such incorporations, or in the articles of associa- 
tion, that would authorize appellant to engage in the insurance 
business. It may be conceded that appellant has no such 
power, but that is not this case. Appellant did not under- 
take to insure the property of appellee, but only to obtain in- 
surance for him in. some responsible company, as it had pre- 
vii)usly done. This is a very different undertaking, and rests 
wiiolly on different principles. 

The true construction of the contract declared on is that, 
by the terms of the original agreement, appellee was bound 
to keep the property insured in such company as appellant ; 
should select, and because it was supposed to be some advan- \ 
tage to the company to attend to tlic insurance themselves. 



1872.] Chicago Building Society v. Crowell, 459 

Opinion of the Court. 

that right was conceded to them on their agreement to pro- 
cure it. 

For what reason the company desired to attend to the in- 
surance is not very clear, nor is it material. It is sufficient 
that they desired to have it under their control, and it may 
be presumed to have been to their interest to have it, or else 
they would not have sought the privilege, when appellee was 
anxious and desirous to attend to it himself. 

No reason is perceived why the company could not have 
obtained the control of the insurance which was for the se- 
curity of the loan to appellee, and to contract that it would 
procure it for him in a company that they would select; and 
to hold that appellant would not be liable for the breach of 
such contract simply because it is beyond the express powers 
conferred, would be to carry the doctrine of ultra, vires to an 
unprecedented extent. This doctrine must have a reasonable 
construction. 

Public policy requires that corporations should be confined 
strictly within the limits of their charters, and should not be 
allowed to exercise powers beyond those expressly conferred 
that would be hurtful to the public interest. 

But where corporations have exercised powers incidental to 
those conferred, and in furtherance of the general objects of 
the corporation, although the subject of the contract may not 
be within any express right conferred, they will be estopped 
from denying that thev had authority to make such contracts. 
Good faith to third parties who deal with such corporations, 
and who may have no accurate knowledge of the extent of 
their powers under their charters, requires the adoption of this 
salutarv rule. The rule has its foundation in the plainest 
principles of natural justice. 

When such corporations have received the benefit of a con- 
tract, if there is nothing in it that is contrary to public pol- 
icv, there can be no just reason why they should not be re- 
quired to perform it. 



I 



460 Chicago Building Society v. Ceowell. [Sept. T., 
Opinion of the Court. 

Common honesty requires that when a corporation has con- 
■ducted, through a series of years, a business incidental to and 
advantageous to the objects and purposes for which the cor- 
poration was created, although not within the express terms 
of their charter, they should be estopped to deny that they 
had rightful authority to make contracts in that regard, and 
should be held liable for the damages that may accrue in 
the breach. The liability for the damages arising on the 
breach results as a corollary from the right to contract. 

In the case at bar, the secretary of the company had been 
accustomed to make such contracts, and from the manner in 
which the business was transacted, we must infer that it was 
with the knowledge of the directors. Whatever advantage 
there was in such contracts, enured to the profit of the com- 
pany. The secretary certainly did not contract for his own 
benefit, but for that of the company. It is not perceived how 
he could possibly have had any personal interest in the mat- 
ter. 

The contract may, therefore, be considered as having been 
made on behalf of the company. The company was to be 
benefited, if any one, and not the secretary, and appellant 
shall not now say that the officer had no authority to make 
the contract on its behalf. 

If appellant did not intend to be bound by the acts of the 
secretary, the directors ought to have forbidden him to exer- 
cise such power; and after injury has occurred to a third 
party, it is too late to insist that he had no authority to make 
such contracts on behalf of the company. It would be most 
inequitable to allow appellant to avail of such contracts so 
made by the secretary, so long as the same are to its advantage, 
but to repudiate the same as having been made without author- 
ity, when damages are claimed for the breach. 

The authority of the secretary in the premises may be in- 
ferred from the fact that the company knew he Avas making 
such contract on its behalf, and that it availed of whatever 
benefit arose therefrom, whether it was much or little. 



1872.] Chicago Building Society v. Ceoavell. 461 

Opinion of the Court. 

The views here expressed are believed to be in harmony 
witli the current of authorities, and are fully sustained, in 
principle, by the following cases: Bradley v. Ballard, 55 111. 
417; BiiffitY. The Boston and Troy R. R. Co. 36 Barb. 420; 
Ably V. Billipps et al. 35 Miss. 618; Farrish v. Wheeler, 22 
N. Y. 494 ; Noyes v. B. and R. R. R. Co. 27 Vt. Ill; Bisselt 
V. 31. S. and K 1. R. R. Co. 22 N. Y. 258 ; Perkins v. The 
Portland, Saco and Portsmouth R. R. 47 Me. 590 ; Barry v. 
27ie Merchants^ Exchange Co. 1 Sandf. Chy. 289; Goodwin v. 
The Union Screw Co. 34 N. H. 378. 

In regard to the second objection, we think it is well taken. 
The jury, under the instructions of the court, found a verdict 
for the full amount of the policy agreed to be procured, less 
a reasonable premium. This was error. 

It was the contract between the parties that appellant should 
have the right to select the company in which the insurance 
should be effected. In the exercise of this right, the secretary 
of appellant did apply to the Merchants' Insurance Company 
for the insurance agreed upon, and was told by the agent that 
he should have the insurance upon some terms to be thereaf- 
ter agreed upon. This must be regarded as a selection of the 
company. It is not even insisted that the selection was an 
improper one. So far as the evidence discloses, the Mer- 
chants' Insurance Company, at that date, was regarded as en- 
tirely solvent, and the selection can not be said to have been 
an improvident one. If appellant had effected the insurance 
in that company it would have been a compliance with its con- 
tract with appellee. This, appellant did not do, and it must 
be held liable to the extent that a policy in that company 
would have afforded appellee indemnity, but no farther. 

There can be no reasonable doubt that but for the disastrous 
fire that occurred about the date of the transaction between 
the parties the insurance would have been effected in that 
company. It appears from the evidence that, in consequence 
of the losses sustained by reason of that memorable fire, the 
Merchants' Insurance Company became insolvent, and has 



462 Flyxn v. Hathaway. [Sept. T., 



Opinion of the Court. 



since ceased to do business. Whatever dividend the company 
may be able to pay, will be the criterion for ascertaining ap- 
pellee's damages. 

For the reason that the damages found are excessive, the 
judgment is reversed and the cause remanded. 

Judgment reversed. 



Patrick Flynn 

V. 

MoKTiMER Hathaway. 

1. Evidence — 'proof of execution when necessary. Where a sheriff is 
Bued for levying upon mortgaged chattels as the property of the mort- 
gagor, by the assignee of the mortgage, the note described in the mortgage 
is not admissible in evidence -without proof of its execution. 

2. Law aitd pact. It is error for the court, in its instructions, to sub- 
mit the question of the due execution of a chattel mortgage to the jury. 

.3. Chattel mortgage. Where the holder of a note secured by chattel 
mortgage sues an ofBcer for levjnng upon and selling the mortgaged 
chattels under execution against the mortgagor, the production of the note 
and mortgage in evidence, or proof of their loss and contents, is indis- 
pensable to a recovery. 

Appeat. from the Circuit Court of Winnebago county; the 
Hon. Wii.T-iAM Brown, Judge, presiding. 

Mr. C. M. Brazee, for the appellant. 

Messrs. Lathrop & Bailey, for the appellee. 

Mr. Justice McAllister delivered the opinion of the 
Court : 

This was trover, brouo-ht in the AVinnebago circuit court 
by appellee, against appellant, the sheriff of that county. 



1872.] Flynn v. Hathaway. 463 

Opinion of the Court. 

March 22, 1869, Zimmerman executed a chattel mortgage 
upon the goods in question, to Leeds, to secure the payment 
of Zimmerman's promissory note, of even date, for $800, pay- 
able in one year. 

Leeds, by assignment on the mortgage made December 9, 
1869, sold, assigned and transferred the mortgage, together 
with the note and goods mentioned in it, to appellee, Hatha- 
way. 

January 17, 1870, appellant, having four executions in his 
hands, issued out of said court against Zimmerman in favor 
of diiferent parties, as sheriff, levied them on the mortgaged 
property, notwithstanding the mortgage was recorded March 
30, 1869. There was then demand made by Hathaway for 
the property, refusal, and the property sold on the executions; 
Avhereupon this action was brouglit by Hathaway against the 
sheriff for the wrongful conversion of the property, and re- 
covery had. 

The question of the bona fides of the transaction out of 
which the mortgage arose was for the jury. The introduction 
of the mortgage and note in evidence, or proof of their loss, 
and secondaiT evidence, was indispeiisable to appellee's case. 
The mortgage purported to have been acknowledged before a 
justice of the peace. When offered in evidence, it was ob- 
jected to as not properly acknowledged. The objection was 
overruled, and the instrument admitted and read to the jury. 
Appellee's counsel then offered a note purporting to have been 
made by Zimmerman, for $800, payable, one year after date, 
to the bearer, Richard C. Leeds. The note described in the 
mortgage was payable to the order of Richard C. Leeds. This 
was objected to on the specific ground that the execution of 
the note had not been proven. The court overruled the objec- 
tion, and admitted the note in evidence. 

We are of opinion that, as between the assignee of the 
mortgage and the sheriff, who represented the execution cred- 
itors, proof of the execution of the note by Zimmerman was 



464 Dobbins v. Duquid et al. [Sept T., 

Syllabus. 

necessary. The record fails to show that proof of the execu- 
tion of the note was made; and it was error to admit it in 
evidence without it. 

By the first and second instructions, the court submitted 
the question of the due acknowledgment of the mortgage to 
the jury. 

This was error. Bullock v. Narrott, 49 111. 62; Bailey v. 
Godfrey, 54 III. 512. This error being the only one we 
should be disinclined to reverse for it, when it appeared, as it 
does here, that there is no legal objection to the acknowledg- 
ment. 

We regard the other points made untenable; but for the 
error indicated, the judgment must be reversed and the cause 
remanded. 

Judgment reversed. 



Thomas S. Dobbins 

V. 

James Duquid et al. 

1. Damages, excessive — depriving lessees of use of leased premises. 
Where the defendant, through his agent, had leased certain premises to the 
plainlifl's, with a building thereon, which was used by them as coal and wood 
dealers, and after the building was burned, the defendant, through his 
agents, leased the premises to other parties, who took possession of the 
same, it appearing that the defendant was ignorant in fact of plaintiff's 
rights, and acted out of no bad motives; and when it also appeared that 
defendant, upon learning the facts, otiered to erect another building for 
the plaintiffs, and let them have the same with more ground than they had 
before, but a short distance from the original premises, so that they might 
have continued their business, wliich was refused, and it further appeared 
that plaintiffs' lease did not have more than six or seven months to run 
after the destruction of the building: Held, where the jury, in an action 



1872.] Dobbins v. Duquid ei al. 465 

Statement of the case. 

of trespass quare dausum fregit, allowed the plaintiffs $3000, that the ver- 
dict was manifestly unjust and the damages excessive. 

2. Landlord and tenant — measure of damages for depriving lessee of use 
of demised premises. Where the lessor of premises used by the lessees in 
carrying on the business of w